Edwards v Zipcar, Inc.

[*1] Edwards v Zipcar, Inc. 2016 NY Slip Op 50850(U) Decided on June 1, 2016 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2016
Supreme Court, Kings County

Kerry Edwards and Marc Hector [FN1], Plaintiffs,

against

Zipcar, Inc., Ramon St. Michael Lawrence and Daphnee Jean, Defendants.



16564/13



Attorney for Plaintiffs

Gary R. Weinberg, PC

26 Court Street, Suite 2606

Brooklyn, New York 11242

718-797-39-50

Carman, Callahan & Ingham, LLP

Attorney for Defendants Zipcar and Ramon St. Michael Lawrence

266 Main Street

Farmingdale, New York 11735

Attorney for Defendant Daphnee Jean

1991 Marcus Avenue, New York, Suite 305

Lake Success, New York 11042
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of defendants Zipcar, Inc. (hereinafter Zipcar) and Ramon St. Michael

Lawrence (hereinafter Lawrence) (hereinafter jointly the Zipcar defendants), filed on December 4, 2015, under motion sequence number three, for an order: (1) pursuant to CPLR 3212 dismissing the complaint and all cross claims asserted against them on the grounds that Kerry Edwards (hereinafter Edwards) did not suffer a serious injury as defined in Insurance Law § 5102 (d);[FN2] and (2) for an order pursuant to CPLR 3212 dismissing Daphnee Jean's (hereinafter Jean) cross-claim as against Zipcar on the issue of liability pursuant to 49 U.S.C. 30106 (hereinafter the Graves Amendment).

Notice of motion

Affirmation in support

Exhibits A—BB

Affirmation in opposition to the motion and cross motion

Affirmation in reply

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion of defendant Jean, filed on December 30, 2015, under motion sequence number four, for an order pursuant to CPLR 3212 dismissing the complaint and all cross claims asserted against her on the grounds that Edwards did not suffer a serious injury as defined in Insurance Law § 5102 (d).

Notice of cross-motion

Affirmation in opposition to the motion and cross motion

Exhibits 1-4

Affirmation in reply

BACKGROUND

On September 13, 2013, Edwards and Hector commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer with cross-claim dated October 10, 2013, Jean joined issue. By verified answer with cross-claim dated October 15, 2013, defendants Zipcar and Lawrence joined issue. On November 13, 2014, the plaintiffs discontinued the action as to Zipcar. The only remaining claim against Zipcar is the cross claim by co-defendant Jean. A note of issue has not been filed.

Plaintiffs' complaint, bill of particulars and Edward's deposition testimony alleges that on June 13, 2013, at approximately 8:00 p.m., Edwards was a passenger in a 2012 Nissan motor vehicle operated by Lawrence and owned by Zipcar. At that time Jean was the owner and operator of 2009 Acura. Lawrence was driving the Nissan on East 18th Street at the intersection of Glenwood Road in Kings County, New York when it collided with Jean's vehicle. Edwards claims that the collision was caused by the negligence of both drivers and that their negligence [*2]caused him to sustain serious physical injuries.

Edwards' bill of particulars alleges, among other things, tears to the medial meniscus and anterior cruciate ligament, joint effusion, internal right knee derangment, and traumatic right knee sprain/strain. He also alleges that due to the injuries sustained in the accident he was required to undergo arthroscopic surgery of the right knee and was confined to bed and his home for more than 90 days. He also alleged that a pre-existing condition of his right knee was exacerbated requiring him to undergo surgery.[FN3]

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).

Summary Judgment for Failure to Sustain a Serious Physical Injury

Lawrence and Jean have jointly moved to dismiss Edwards' complaint on the basis that he did not have a serious injury as defined in Insurance Law § 5102 (d). Insurance Law § 5102 (d) defines serious injury as: "[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing [*3]substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." "A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (see Grossman v Wright, 268 AD2d 79, 83 [2nd Dept 2000]). "With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury" (Id. at 84).

In support of the instant motion, Lawrence and Jean have shared and relied on the same evidence. They have submitted a copy of Edwards' deposition transcript and verified bill of particulars. They have also submitted the affirmed report of Drs. Jeffrey Passick, an orthopedist, who conducted an independent medical examination of Edwards and Stephen Lastig, a radiologist, who read and interpreted MRI films of Edwards' knee. Also included are uncertified records of Drs. John S. Lyons, Joseph L. Paul and various medical records of the plaintiff.[FN4]

Essentially, the defendants assert that Edwards was involved in two prior accidents and that the injuries and resulting surgery are due to the prior injuries. Defendants also claim that even if the injuries were not caused by the prior accidents they still do not satisfy the serious physical injury threshold of Insurance Law § 5102 (d). The first accident was in 2008 in which Edwards injured his left knee (hereinafter the 2008 accident). The second accident in 2009, Edwards injured his right knee (hereinafter the 2009 accident).

Dr. Passick conducted an IME of Edwards on March 18, 2015. Dr. Passick conducted range of motion testing with a goniometer. Edwards did not display any range of motion deficits. With regard to range-of-motion testing performed on the plaintiff's lumbar spine, Dr. Passick, indicated only that the straight leg test was negative bilaterally and failed to compare his finding to what is normal (Shirman v Lawal, 69 AD3d 838 [2nd Dept 2010], citing Walker v Public Adm'r of Suffolk County, 60 AD3d 757 [2nd Dept 2007]; see also Malave v Basikov, 45 AD3d 539 [2nd Dept 2007]). Under these circumstances, it is not necessary to consider the sufficiency of the plaintiff's opposition to defendants' motion (see Page v Belmonte, 45 AD3d 825 [2nd Dept 2007]; Tchjevskaia v. Chase, 15 AD3d 389 [2nd Dept 2005]).

It should be noted that a preexisting condition does not foreclose a finding that the injuries were causally related to the accident (see Matthews v Cupie Transp. Corp., 302 AD2d 566 [2nd Dept 2003]). In the instant matter the defendants submit documents purporting to be plaintiff's prior medical records relating to the prior accidents which evidence a prior injury to plaintiff's knees. Defendants also submit the MRI report of Dr. Lastig, a radiologist, who opines [*4]that there was a horizontal tear of the posterior horn of the medial meniscus which was present in Edward's MRI films on 2009. Accordingly, Dr. Lastig opines that the tear was a preexisting condition and unrelated to the accident of June 13, 2013. Regardless of Dr. Lastig's findings the defendants fail to meet their prima facie burden as the straight leg maneuver test performed by Dr. Passick did not compare the results to normal.

In light of the foregoing, the defendants did not meet their prima facie burden of showing that the plaintiff did not sustain a serious injury due to the subject accident (see generally, Ortiz v Orlov, 76 AD3d 1000 [2nd Dept 2010]). It is, therefore, unnecessary to decide whether the papers submitted by the plaintiff in opposition is sufficient to raise a triable issue of fact (Chiara v Dernago, 70 AD3d 74 [2nd Dept 2010], citing Mannix v Lisi's Towing Serv., Inc., 67 AD3d 977 [2nd Dept 2009]; Smith v Quicci, 62 AD3d 858, [2nd Dept 2009]).

Summary Judgment on the cross claim based on the Graves Amendment

The allegations against Zipcar in the complaint include, but are not limited to negligent ownership, maintenance and operation. Jean alleges in his cross claim that Zipcar and Lawrence were negligent in causing the accident. The complaint alleges that Zipcar is liable due to active negligence. However, through discovery, including plantiff's deposition transcript, it is clear that the only viable claim against Zipcar is based on vicarious liability as the owner of the vehicle. In fact, as aforementioned the plaintiffs have already discontinued their action as against Zipcar. Accordingly, Zipcar must meet its burden establishing that it bears no vicarious liability for the accident.

Vehicle and Traffic Law § 388 Section 1., states, in pertinent part:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.

Zipcar claims that the Graves Amendment bars Jean's claim against it because the statute was meant to abolish vicarious liability of automobile lessors based solely on ownership of the vehicle involved in an accident.

49 USCA § 30106, otherwise known as the Federal Transportation Equity Act of 2005 or Graves Amendment, enacted on August 10, 2005, states in pertinent part:

(a) In general—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

In support of this portion of the motion Zipcar has annexed the affidavit of Gail Newman, described as Zipcar's Corporate Insurance and Regional Risk Manager; the maintenance records of the vehicle, the registration and the membership agreement between Lawrence and Zipcar.

Zipcar has established that it was an "owner (or an affiliate of the owner) ... engaged in [*5]the trade or business of renting or leasing motor vehicles" (49 USC § 30106). Since there are no allegations of negligence or wrongdoing on its part, Zipcar is entitled to dismissal of the complaint (see 49 USC § 30106; Graham v Dunkley, 50 AD3d 55, 58 (2nd Dept 2008).

Accordingly, the burden switches to Jean to raise a triable issue of fact. Jean has not opposed this portion of Zipcar's motion and therefore does not raise a triable issue of fact.

CONCLUSION

That branch of Zipcar's motion for an order pursuant to CPLR 3212 dismissing the complaint asserted against them on the grounds that Kerry Edwards did not suffer a serious injury as defined in Insurance Law § 5102 (d) is moot.

Ramon St. Michael Lawrence's motion for an order pursuant to CPLR 3212 dismissing the complaint asserted against them on the grounds that Kerry Edwards did not suffer a serious injury as defined in Insurance Law § 5102 (d) is denied.

That branch of Zipcar's motion for an order pursuant to CPLR 3212 dismissing Daphnee Jean's cross-claim as against Zipcar on the issue of liability pursuant to the Graves Amendment is granted.

Daphnee Jean's cross motion for an order pursuant to CPLR 3212 dismissing the complaint and all cross claims asserted against her on the grounds that Edwards did not suffer a serious injury as defined in Insurance Law § 5102 (d) is denied.

Enter:

Dated: June 1, 2016

Hon. Francois A. Rivera

J.S.C. Footnotes

Footnote 1:On February 16, 2015, Marc Hector (hereinafter Hector) settled and discontinued his claims as against Zipcar, Inc and Ramon St. Michael Lawrence.

Footnote 2:By stipulation dated November 13, 2014, the plaintiffs discontinued their claims against Zipcar. The only claim remaining claim against Zipcar is the cross-claim plead against it by Daphnee Jean (hereinafter Jean). Accordingly, Zipcar's motion for summary judgment in its favor and dismissal of the complaint as against both plaintiffs is moot.

Footnote 3:Defendants Jean and Lawrence assert in their respective motion papers that the plaintiff failed to allege exacerbation in the bill of particulars. However, the plaintiff's bill of particulars clearly states "all of the aforementioned injuries, resulting disabilities, aggravations, exacerbations and involvements are associated with further soft tissue injuries to the areas traumatically affected, including: tearing, exacerbation...."

Footnote 4:A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v New York City Tr. Auth., 16 AD3d 45 [2nd 2005]). However, there is nothing in the motion papers explaining how the unsworn medical records were obtained. Nor does the affirmation of defendants respective counsel set forth the basis for the counsel's knowledge that unsworn medical records are what they are purported to be. Moreover no doctor explains or opines on the content of the unsworn medical records.