Jiyoun Pyeun v Jin Woong Woo

[*1] Jiyoun Pyeun v Jin Woong Woo 2014 NY Slip Op 51277(U) Decided on August 8, 2014 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014
Supreme Court, Queens County

Jiyoun Pyeun, Plaintiff,

against

Jin Woong Woo and JOSEPH G. O'NEILL, Defendants.



701035/2012
Robert J. McDonald, J.

The following papers numbered 1 to 19 were read on this motion by defendant, JOSEPH G. O'NEILL, for an order pursuant to CPLR 3212 granting defendant summary judgment and dismissing the plaintiff's complaint and all cross-claims on the ground that the plaintiff, JIYOUN PYEUN, did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104 and on the ground that the facts contained in the record establish that defendant JOSEPH G. O'NEILL is not liable for the occurrence of the accident which allegedly caused the injuries sustained by the plaintiff:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits.....................1 - 5

Plaintiff's Affirmation in Opposition-Affidavits-

Exhibits.................................................6 - 10

Co-Defendant Woo's Affirmation in Opposition-

Affidavits-Exhibits......................................11 - 15

O'Neill's Reply Affirmation..............................16 - 19

This is a personal injury action in which plaintiff, JIYOUN PYEUN, seeks to recover damages for injuries she sustained when, as a pedestrian, she was struck by the motor vehicle operated by defendant JOSEPH G. O'NEILL. The accident occurred on March 31, 2012, at the intersection of Roosevelt Avenue and 160th Street. As a result of the accident the plaintiff alleges that she sustained serious physical injuries including a tear of the meniscus and the medial collateral ligament of the left knee requiring arthroscopic surgery and a tear of the subscapularis tendon of the left shoulder.

The plaintiff commenced this action by filing a summons and complaint on June 13, 2012. Issue was joined by service of defendant Woo's verified answer with cross-claim dated September 4, 2012. Co-defendant O'Neill joined issue by service of an answer dated July 31, 2012. A note of issue was filed by the plaintiff on October 3, 2013. The matter is presently on the calendar in the Trial Scheduling Part for October 29, 2014.

THRESHOLD

In a prior motion, defendant Woo moved for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff's complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.By decision and order dated July 23, 2014, this Court found that the proof submitted by the defendant, including the affirmed medical report of Dr. Parisien and the plaintiff's testimony at her examination before trial were sufficient to meet its prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]).

However, this Court denied defendant Woo's motion for summary judgment finding that the plaintiff raised triable issues of fact by submitting the affirmed medical reports of Drs. Sun and Khodadadi attesting to the fact that the plaintiff sustained tendon tears in the left shoulder and left knee as a result of the accident and finding that the plaintiff had significant limitations in range of motion of her left knee and left shoulder both contemporaneous to the accident and in a recent examination, and concluding that the plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident (see Perl v Meher, 18 NY3d 208 [2011]; David v Caceres, 96 AD3d 990 [2d Dept. 2012]; Martin v Portexit Corp., 98 AD3d 63 [1st Dept. 2012]; Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 ADd 367 [2d Dept. 2009]). As such, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khavosov v Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 AD3d 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091[2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]).

This Court also found that Dr. Sun and the plaintiff adequately explained the gap in plaintiff's treatment stating that no-fault had stopped the plaintiff's benefits and the plaintiff had limited ability to pay for treatment (see Abdelaziz v Fazel, 78 AD3d 1086 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010]; Domanas v Delgado Travel Agency, Inc., 56 AD3d 717 [2d Dept. 2008]; Black v Robinson, 305 AD2d 438 [2d Dept. 2003]).

Defendant Joseph G. O'Neill now separately moves for an order granting summary judgment dismissing the plaintiff's complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.The proof submitted in support of the prior motion and the proof submitted in opposition is the same as the proof submitted in co-defendant Woo's motion.

Accordingly, for the same reasons set forth in this Court's decision dated July 23, 2014, the motion by defendant O'Neill for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff, JIYOUN PYEUN, did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104 is denied.

LIABILITY

With respect to the branch of the motion seeking summary judgment on the issue of liability, Jacqueline Doody, Esq., counsel for Joseph G. O'Neill, submits a copy of the police accident report and a copy of the deposition transcripts of plaintiff and of defendant Joseph G. O'Neill. Counsel for co-defendant Woo, Cecila Proano, Esq., also submits a copy of the transcript of co-defendant Woo.

In her examination before trial taken on July 23, 2013, the plaintiff, Jiyoun Pyeun, testified that she was involved in an accident on Saturday, March 31, 2012, at approximately 7:00 a.m. at the intersection of Roosevelt Avenue and 150th Street. The intersection was controlled by a traffic light. She had left her home and was walking to the train station at 150th Street and Murray Hill. She was walking southbound on the east side of 150th Street. She stated that there was a light governing the movement of pedestrians traveling in her direction. She stated that at the intersection the pedestrian light was green in her favor so she crossed Roosevelt Avenue in the crosswalk. She had completely crossed Roosevelt Avenue and was on the sidewalk of 150th Street when two motor vehicles, operated by the defendants collided in the street behind her. She testified that while walking on the sidewalk she heard the noise of a collision and turned around to look. At that point she saw one of the vehicles, a green truck, coming towards her at great speed. The green truck struck her on her left upper thigh area. She bounced off the truck, her body hit the wall of the building next to her and she fell to the pavement. The other vehicle involved in the collision was a black BMW. She stated that she did not see the collision. The plaintiff further testified that she left the scene in an ambulance and was transported to the emergency room at Flushing Hospital where she was treated for pain to her left knee, lower back and neck.

Defendant Jin Wong Woo testified at an examination before trial on March 13, 2014. He stated that on the day of the accident he was operating a BMW and driving his friend to the Murray Hill train station. He was proceeding on Roosevelt Avenue and observed a green traffic signal at the intersection of 150th Street. As he proceeded into the intersection his vehicle was broadsided by a truck on the front passenger side of his vehicle. His car was caused to spin around and hit an electric pole. He did not see a pedestrian get hit by a vehicle. He stated that when the police came to the scene he refused to take a breathalyzer test because he had been drinking the night before. He stated that he had consumed five shots of alcohol and three or four glasses of beer. He left the scene in an ambulance and was arrested at the hospital for DWI.

Defendant O'Neill, age 60, testified at an examination before trial on July 23, 2013. He stated that on the date of the accident he was operating his Chevy Tahoe truck on 150th Street. He stated that the intersection with Roosevelt Avenue is controlled by a traffic signal. He stated that when he first observed the traffic signal it was yellow and then it changed to green in his direction of travel. He stated that when he proceeded into the middle of the intersection his vehicle was struck by the front of the black BMW which came fast down Roosevelt Avenue and hit his driver's side door causing his vehicle to spin and hit a pole. His truck and the BMW both ended up side by side on the sidewalk near a laundromat on the corner. He stated that his vehicle did not come into contact with the plaintiff. He observed the plaintiff on the sidewalk and claims that she saw his vehicle and was able to move away from his vehicle. He observed the co-defendant Woo take a breathalyzer test at the scene. He stated that Woo was handcuffed and taken to the hospital by ambulance. He also left the scene by ambulance.

The description of the accident provided by the police officer responding to the scene contained in the police reports states:

"At t/p/o oper veh No.1(O'Neilll) states he was proceeding southbound on 150th Street at the intersection of Roosevelt Avenue with the green light when veh 2(Woo) ran steady red light striking veh #1 in the side and causing both vehicle to go into a utility pole. Veh #2(Woo) intoxicated, refused blood test."

In her affirmation in support of the motion for summary judgment, Mr. O'Neill's counsel, contends that the evidence demonstrates that Mr. O'Neill is entitled to summary judgment dismissing the plaintiff's complaint against him, based upon the fact that the evidence shows that codefendant Woo was arrested at the scene for DWI. Counsel asserts, in addition, that the police report does not make mention that a pedestrian was injured at the scene. Further, counsel asserts that the testimony of Mr. O'Neilll states that he had a green light in his favor and that Mr. Woo violated VTL § 111(d)(1) having run a red light prior to the collision. Counsel claims that the evidence shows that defendant Woo, who was intoxicated and ran a red light was solely responsible for the subject accident and any injuries allegedly sustained by the plaintiff (citing Corrigan v Porter Cab Corp, 101 AD3d 471 [1st Dept. 2012]; Keller v Rashid, 100 AD3d 831 [2d Dept. 2012]; Deleg v Vinci, 82 AD3d 1146 {2d Dept. 2011]; Tiefenthaler v Islam, 66 AD3d 588 [1st Dept. 2009]; Ramos v Triboro Coach Corp., 31 AD3d 625]). Counsel claims that as O'Neill testified that he was proceeding with the green light in his favor, he was entitled to anticipate that co-defendant Woo would stop his vehicle at the red light and that Woo, by failing to stop at the red light, is negligent as a matter of law.

In opposition to the motion, counsel for defendant Woo states that there are questions of fact as to the causation of the accident based upon Woo's testimony at his examination before trial. At that time Mr. Woo testified that he had he green light in his favor when he entered the intersection and was struck by The O'Neill vehicle which entered the intersection against a red light causing contact between the two vehicles. Counsel also argues that even if Mr. Woo was intoxicated at the time of the accident his intoxication is only one factor to be considered with regard to the causation of the accident.

In order to succeed on a motion for summary judgment it is necessary that the movant tender evidentiary proof in admissible form, sufficient to establish his cause of action so as to warrant the court, as a matter of law, directing judgment in his favor (Zuckerman v New York, 49 NY2d 557 [1980]; CPLR 3212). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once a prima facie showing has been made, the opponent is required to lay bare its proof in admissible form and to demonstrate the existence of a triable issue of fact (Zuckerman, supra).

Here, defendant O'Neill asserts that the evidence shows that the accident was caused solely by the negligence of Mr. Woo because Woo was driving while intoxicated and was arrested at the scene. In addition, O'Neill claims that the accident was caused solely by the negligence of defendant Woo, who, it is alleged, violated Vehicle and Traffic Law § 1111(d)(1) by failing to stop at a red traffic control signal. However, although O'Neill testified that the light facing his direction of travel on 150th Street was green in his favor when he entered the intersection, defendant Woo, also testified that the red traffic signal facing his direction of travel on Roosevelt Avenue was green in his favor.

Therefore, as there are conflicting versions in the accounts of the accident, particularly as to which driver had the green traffic control signal in his favor, there are questions of fact raised in the papers submitted as to which driver violated Vehicle and Traffic Law § 1111(d)(1) and [*2]was thereby the cause of the accident (see Munter v Hubert, 34 AD3d 544 [2d Dept. 2006]). Given the conflicting versions as to how the accident actually occurred, issues of credibility have been raised that cannot be determined on a motion for summary judgment.

Further, although Woo was found to have been intoxicated at the time of the accident, the fact that said defendant was intoxicated is a factor to be considered by the jury in determining the credibility of the witness and "in determining whether or not the defendant used the care of a reasonably prudent sober person under the circumstances" (see PJI 2:45). Therefore, driving while intoxicated does not automatically establish the defendant's negligence for causing the accident and does not vitiate the effect of any negligence on the part of the co-defendant (see Gall v Schwed, 989 NYS2d 109 [2d Dept. 2014]; Kemper v Arnow, 18 AD3d 939 [3rd Dept. 2005]; Wallace v Terrell, 295 AD2d 840 [3rd Dept. 2002][although defendant's driving while intoxicated unquestionably constitutes negligence per se, in order for liability to attach, it must also be proved that the negligence was the cause of the event which produced the harm. Defendant's legal intoxication, without a showing of causation, cannot provide a basis for liability]; Reed v City of Syracuse, 309 AD2d 1195 [4th Dept. 2003]; Tiberi v Barkley, 226 AD2d 1005 [3rd Dept. 1996]).Accordingly, for the reasons stated above, it is hereby,

ORDERED, that the motion by defendant JOSEPH G. O'NEILL for an order granting summary judgment dismissing the plaintiff's complaint and all cross-claims against him on the issue of liability is denied.Dated: August 8, 2014

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.