McCants v Incorporated Vil. of Lynrbook

Annotate this Case

Download PDF

McCants v Incorporated Vil. of Lynrbook 2017 NY Slip Op 33019(U) November 16, 2017 Supreme Court, Nassau County Docket Number: 600362/16 Judge: Sharon M.J. Gianelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NASSAU COUNTY CLERK 11/27/2017 INDEX NO. 600362/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/28/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU - !AS/TRIAL PART 26 Present: Hon. Sharon M.J. Gianelli, J.S;C. x --------~~-~~~-~~-~ JOLAN McCANTS, Index No. 600362/16 Plaintiff, -against- Mot Seq. No. 001 THE INCORPORATED VILLAGE OF LYNRBOOK, LYNBROOK POLICE DEPARTMENT, and . JOSEPH E. COSENZA, "' Defendants. · Submit Date: 09/28/17 --~---------------~:x Papers submitted on this motion: Defendants' Notice of Motion_ _ _ _ _ _ _x Plaintiffs Affirmation in Opposition X Defendants' Reply Affirmation X Motion by the attorneys for the Defendants for 'an order pursuant to CPLR § 3212 granting summary judgment dismissing Plaintiffs complaint on the grounds that Plaintiff did not sustain a "serious injury" as required by Insurance Law§ 5102(d) and/or violated VTL § 1150 is DENIED. Plaintiff brings the within action for personal injuries allegedly sustained in a motor vehicle accident on February 24, 2015. .ii The accident occurred on Ocean Avenue near the approach to Tanglewood Road and " New York. Plaintiff was attempting to Peninsula Boulevard in Lynbrook, Nassau County, cross the street when he was hit by a marked Village of Lynbrook police vehicle driven by Defendant Police Officer Joseph E. Cosenza [Defendant]. Plaintiff was wearing black Vans sneakers, black pants, and a dark cargo jacket with a hood. Plaintiff has testified that after driving to Lakeview and parking his car, he skateboarded to the intersection of Page 1of5 ' 1 of 5 [*FILED: 2] NASSAU COUNTY CLERK 11/27/2017 NYSCEF DOC. NO. 39 INDEX NO. 600362/2016 RECEIVED NYSCEF: 11/28/2017 Tanglewood Road and Ocean Avenue, Plaintiffpicked up his skateboard in his right arm and observed the red light to his left. The weat4er was clear, and while it was dark out, the area was lit by streetlights. Plaintiff observed the crosswalk to the left him and testified that there was snow preventing him from reaching the crosswalk. Prior to the accident, Defendant observed traffic backed up southbound on Ocean Avenue and looked down Tanglewood Road, which intersects with Peninsula Boulevard and did not observe anyone. Defendant's police vehicle was not responding to any call or emergency at the time of the accident. Defendant testified that prior to impact he was alerted to the accident by Defendant's hitting the left-front fender behind the driver-side wheel, at which point Defendant saw Plaintiffs skateboard flying through the air and stop behind the vehicle. The attorney for Defendant argues that there were no .,, pedestrian crosswalks or signs to cross Ocean Avenue from Tanglewood Road and that Plaintiff should have used the crosswalk on Peninsula Boulevard and Ocean Avenue. In order to satisfy the statutory "serious injury" threshold, a plaintiff must have sustained an injury that is identifiable by objective proof. Subjective complaints of pain do not qualify as a serious injury within the meaning of Insurance Law§ 5102(d) (see Toure v. Avis Rent A Car Sys., Inc., N.Y.2d 345). On a motion for summary judgment where the Issue is whether a plaintiff has sustained a serious injury under the no-fault law, the movant bears the initial burden of presenting competent evidence that there is no cause of action (Hughes v. Cal, 31 AD3d 385; Browdame v. Candura, 25 AD3d 747). The proof must be viewed in a light most favorable to the non-movants (Perez v. Exel Logistics, Inc., 278 AD2d 213). If the movant satisfies that burden, the burden shifts to the plaintiff to demonstrate, by the Page 2 of 5 2 of 5 [*FILED: 3] NASSAU COUNTY CLERK 11/27/2017 INDEX NO. 600362/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/28/2017 submission of objective proof of the nature and degree of the injury, that she sustained a serious injury, or that there are questions of fact as to whether the purported injury, in fact, is serious (Flores v. Leslie, 27 AD3d 22o}In viewing motions for summary judgment, it is well settled that summary judgment is a drastic remedy which may only ' be granted where there is no clear triable issue'of fact (see Andre v. Pomeroy, 35 NY2d 361; Mosheyev v. Pilevsky, 283 AD2d 469). Indeed, "[e]ven the color of a triable issue, forecloses the remedy" (Rudnitsky v. Robins, 191 AD2d 488). Moreover, "[i]t is axiomatic that summary judgment requires issue finding rather than issuedetermination and that resolution of issues of credibility is not appropriate" (Greco v. Posillico, 290 AD2d 532; Judice v. DeAngelo, 272 AD2d 583; see also S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338). Further, on a motion for summary ·''' judgment, the submissions of the opposing party's pleadings must be accepted as true [See: Glover v. City ofNew York, 298 AD2d 4~8 (2nd Dept. 2002)]. Defendants have not made an adequate primafacie showing of entitlement to summary judgment. In support of the motion on the issue of "serious injury," the attorneys for Defendant submits two [2] affirmations by Jonathan Lerner, M.D., both dated December 19, 2016. Dr. Lerner did not perform a physical examination of Defendant. Dr. Lerner relied on the medical reports submitted by Plaintiff's attorney. Medical reports [Exhibits 0 to Notice of Motion; Exhibit A to Affirmation in Opposition] assert that the MRI studies and film indicate "multiple non-displaced fractures of the distal calcaneus." Charles '· Milchteim, M.D. opines: .!: Page3 of 5 3 of 5 [*FILED: 4] NASSAU COUNTY CLERK 11/27/2017 INDEX NO. 600362/2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 11/28/2017 . ' B~sed on the patient's history of the accident, no prior relevant clinical history to his !~ft fo.ot and ankle, and his findings on my multiple physical examinations outlmed m the aforementioned reports, I am on the opinion within a reasonable degree of medical certainty that the aforementioned fractures were causally related to being struck by the car on February 24, 2015. The records upon which Defendants' based thei~ motion for summary judgment show the Plaintiff to be clinically diagnosed with a fracture as a result of the subject accident thereby raising an issue of fact. See: Levy v. Zaman, 95 A.D.3d 585; Elias v. Mah/ah, 58 A.D.3d 434. A fracture constitutes a "serious injury" under the statute. Since Plaintiff I;ias established at least one of the serious injury thresholds, he can -~ recover from any and all of the injuries proximately caused by the accident. See: Linton v. Nawaz, 14 N.Y.3d 821, 822. "Since plaintiff ektablished that at least some of his injuries meet the 'No Fault' threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment." See also: Mulligan, 120 A.D.3d 1155, 1156; Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 549-550. "Accordingly, once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied." The Court will next address the liability issue. In opposition to the motion, the attorney for Plaintiff argues that Plaintiff was utilizing the green light immediately to his left to cross; a'.nd relying on the fact that cars were stopped to his left at the red light on the other side of the intersection. Cars were stopped in front of him, waiting for the red Iigh~. Plaintiff further asserts the act of Page4 of 5 4 of 5 [*FILED: 5] NASSAU COUNTY CLERK 11/27/2017 NYSCEF DOC. NO. 39 INDEX NO. 600362/2016 RECEIVED NYSCEF: 11/28/2017 ' Defendant, suddenly and without warning, pulling into the turning lane from behind stopped vehicles as Plaintiff was entering that lane where the incident occurred is the sole cause of the accident. 'I~ The deposition testimony of all of the parties, submitted by their motion, presents issues of fact as to the manner in which the accident occurred: whether the impact between the Defendant's vehicle and Plaintiffs foot was a foreseeable consequence of Defendant's " suddenly pulling his vehicle out from behind stopped cars, entering into a turning lane, accelerating and rapidly approaching an intersection where he had a red light, while the Plaintiff was crossing a few feet from the "corner" that was blocked by a snow bank. Crossing outside the crosswalk is not negligence as a matter of law. Whether Plaintiff exercised reasonable care under the circumstances is a triable issue of fact for a jury to decide, as is the question of comparative negligence. Ruggiero v. Lentini, 123 A.D.3d 998; Shui-Kwan Lui v. Serrane, 103 A.D.3d 620; See also: Tomas v. Ronai, 189 A.D.2d 635. The motion for summary judgment is DENI ED.' This decision is the Order of the Court. ENTER: November 17, 2017 Mineola, New York .J. Gianelli, preme Court ENTERED NOV 2 7 2017 NASSAU COUNTY '' COUNTY CLERK'S OFFICE . =II 5 of 5 Pages of 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.