Bush v Reina

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Bush v Reina 2017 NY Slip Op 33482(U) June 27, 2017 Supreme Court, Westchester County Docket Number: Index No. 58116/2015 Judge: William J. Giacomo 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: WESTCHESTER COUNTY CLERK 06/27/2017 12:46 PM NYSCEF DOC. NO. 40 INDEX NO. 58116/2015 RECEIVED NYSCEF: 06/27/2017 To commence the statutory statutory time time commence the period for right period for appeals appeals as of of right [a)), you advised (CPLR 5513 [a]), you are advised copy of of this this order, with to serve serve a copy order, with notice notice of of entry, entry, upon upon all parties. parties. SUPREME YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. WILLIAM GIACOMO, J.S.C. J.S.C. PRESENT: WILLIAM J. GIACOMO, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -.x EBONY EBONY A. BUSH, BUSH, Plaintiff,· Plaintiff, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X - againstagainst- Index Index No. 58116/2015 58116/2015 DECISION & ORDER ORDER DECISION BARBARA BARBARA REINA, REINA, Defendant. Defendant. - - -- -- -- -- - - - -- -- -- - - -- - - -- -- - -- - -- -- - - - -- -- -- - - - -- - - - -- -- -- - x X recover damages damages for for personal personal injuries injuries as a result result of a motor motor vehicle In this action action to recover vehicle accident, plaintiff plaintiff moves moves for for summary summary judgment issue of liability; liability; (2) to strike accident, judgment (1) on the issue strike defendant's affirmative affirmative defenses defenses of plaintiff's comparative comparative negligence; negligence; and (3) defendant's of the plaintiff's summary judgment issue of "serious "serious injury" injury" within meaning of Insurance Insurance Law summary judgment on the issue within the meaning 5102(d): 5102(d): Papers Papers Considered Considered 1. Notice of Robert Notice of Motion/Affirmation Motion/Affirmation of Robert W. Folchetti, Folchetti, Esq./Affidavit Esq.lAffidavit of Ebony Ebony A. Bush/Affirmation Bush/Affirmation of Gladys Gladys E. Cardenas, Cardenas, M.D./ MD.I Exhibits A-E; Exhibits A-E; 2. Affirmation Affirmation of Michelle Michelle R. Kolodny, Kolodny, Esq. in Opposition/Exhibits Opposition/Exhibits A-E; Reply Affirmation Robert W. Folchetti, Folchetti, Esq. 3. Reply Affirmation of of Robert Factual and Procedural Procedural Background Background Factual Plaintiff of a Plaintiff commenced commenced this action action to recover recover for personal personal injuries injuries as a result result of motor vehicle vehicle accident accident which Plaintiff was the process process of motor which occurred occurred on May 7, 2012. 2012. Plaintiff was in the making a right right turn turn into a parking parking area area when when defendant's defendant's vehicle vehicle attempted attempted to overtake overtake making plaintiff's vehicle vehicle by cutting cutting through parking area plaintiff's vehicle. vehicle. plaintiff's through the parking area and striking striking plaintiff's [* 1] Plaintiff moves moves for summary summary judgment issue of of liability liability and to strike from Plaintiff judgment on the issue strike from defendant's affirmative defenses defenses of her comparative comparative negligence. negligence. Plaintiff Plaintiff also also moves moves for for defendant's affirmative summary issue of "serious "serious injury". injury". Plaintiff Plaintiff alleges alleges that that the injuries injuries to her her summary judgment judgment on the issue lumbar spine spine constitute constitute a significant significant limitation limitation of of use of a body body function system and function or system lumbar prevented her her from from performing performing her her usual usual and customary customary daily daily activities activities for not less than prevented than days during during the 180 days days immediately immediately 1 following accident. of 5 the accident. 90 days following FILED: WESTCHESTER COUNTY CLERK 06/27/2017 12:46 PM NYSCEF DOC. NO. 40 INDEX NO. 58116/2015 RECEIVED NYSCEF: 06/27/2017 Bush v. Reina, Index Index No. 58116/2015 58116/2015 Plaintiff attesting that Plaintiff submits submits an affidavit affidavit attesting that she was operating her was operating her vehicle vehicle and traveling westerly direction direction on Old Albany Albany Post traveling in a westerly Post Road in the She the Town Town of Cortlandt. Cortlandt. She had her was traveling her right right turn signal signal activated activated and was traveling at a safe safe and reasonable reasonable speed. speed. As plaintiff was in the process of executing a right turn, plaintiff was process executing turn, defendant's defendant's vehicle, vehicle, which been which had been traveling attempted to pass plaintiff traveling behind behind her, attempted plaintiff on the right right and drove plaintiffs drove around around plaintiff's vehicle vehicle in the parking parking area area and plaintiff's vehicle. vehicle. Plaintiff Plaintiff attests, and struck struck plaintiff's attests, "I had no idea that the defendant was going that defendant was going to try to illegally illegally pass pass me on the right as I was was in the process process of turning turning right and she did so without without warning, without sounding sounding her horn horn or giving giving any warning, without other signal." signaL" other Plaintiff submits defendant's Plaintiff submits defendant's deposition deposition testimony wherein she testified that she testimony Wherein testified that was directly directly behind behind plaintiffs plaintiffs vehicle vehicle prior prior to the accident accident and plaintiff plaintiff was process was in the the process of making making a right turn. Defendant Defendant also also testified that plaintiffs vehicle looked like it was testified that plaintiffs vehicle looked was stopped so defendant defendant just just "went stopped "went to go around Defendant admitted around her". Defendant admitted that that there there was nothing from proceeding nothing blocking blocking her from proceeding straight her lane lane of she still decided straight in her of travel travel but she decided to around plaintiffs plaintiffs vehicle go around vehicle to the right. As to her injuries, injuries, plaintiff plaintiff attests that following attests that following the the accident, accident, she had significant significant pain in her lower went to the emergency her lower back back and went room where emergency room where x-rays x-rays were were taken taken and she was given given prescriptions. was prescriptions. She She went treatment with Coast Pain went for for follow follow up treatment with East East Coast Management, Management, P.C. and underwent underwent an MRI scan and a course course of of physical physical therapy for her her therapy for lower lower back. For ten months, months, plaintiff plaintiff attended attended physical physical therapy therapy and only stopped when only stopped when her her insurance insurance company company ceased paying for ceased paying for the treatment. treatment. At the time time of the the accident, At accident, plaintiff plaintiff attests attests that that she employed as a home home health health she was employed aide aide for for a senior senior citizen. citizen. She She worked worked approximately approximately twenty-five twenty-five hours hours per per week, week, cleaning, cleaning, doing laundry, doing laundry, meal meal preparation, preparation, and doctor's doctor's appointments. appointments. After accident, plaintiff plaintiff After the accident, states completely disabled states that that she she was completely disabled from her job until at least April 5, 2013. job until least April 2013. She attests attests that that her doctor doctor recommended recommended that that she refrain refrain from activities from work work and physical physical activities until further further notice. notice. Plaintiff Plaintiff was never never cleared cleared to return return to work activities and did not work or activities return return to work "until well-after last treatment work "until well-after my last treatment on April April 5, 2013." 2013." After the the accident, states that that she was After accident, plaintiff plaintiff states unable to perform perform her her customary was unable customary activities such as cooking, making beds, activities such cooking, vacuuming, vacuuming, making beds, laundry, laundry, dusting, dusting, and cleaning, cleaning, which which she she did prior prior to the accident. She was also also unable unable to engage engage in walking, walking, dancing, dancing, the accident. aerobic aerobic exercises exercises and socializing least April socializing with friends friends until at least April 5, 2013. 2013. She further further states states that she she could could not stay in any that not stay any position position for for too long and her her ability ability to sit, stand down stand and lie down were significantly significantly limited. limited. were Plaintiff submits submits an affidavit affidavit of her her treating physician Gladys Gladys E. Cardenas, Cardenas, M.D. Dr. Plaintiff treating physician Cardenas practices practices physical physical medicine rehabilitation. Dr. Cardenas Cardenas provided provided Cardenas medicine and rehabilitation. treatment to plaintiff after the May treatment plaintiff after May 7, 2012 2012 accident. accident. Dr. Cardenas Cardenas attached of attached copies copies of medical medical records records pertaining pertaining to plaintiffs treatment. On May May 11, 2012, Dr. Cardenas plaintiffs treatment. 2012, Cardenas examined plaintiff plaintiff and thereafter, thereafter, plaintiff plaintiff treated treated at East East Coast Coast Pain Management Management through through examined ·April 2013. Range April 5, 2013. Range of motion motion testing demonstrate that plaintiff's lumbar spine range testing demonstrate that plaintiff's lumbar spine range of of [* 2] 2 2of 5 FILED: WESTCHESTER COUNTY CLERK 06/27/2017 12:46 PM NYSCEF DOC. NO. 40 INDEX NO. 58116/2015 RECEIVED NYSCEF: 06/27/2017 Index No. 58116/2015 Bush v. Reina, Index 58116/2015 motion demonstrated flexion motion did not return to normal. normal. Plaintiff Plaintiff demonstrated flexion of 30 degrees degrees with 110 being normal; normal; extension degrees with 30 being normal; normal; right right lateral lateral flexion flexion of 20 being extension of 5 degrees degrees with 30 being being normal; normal; and left lateral lateral flexion flexion of 15 degrees degrees with being normal. normal. degrees with 30 being Cardenas avers, avers, with a reasonable reasonable degree degree of of medical medical certainty, certainty, that that plaintiff plaintiff Dr. Cardenas sustained injuries to her lumbar lumbar spine diagnosed as derangements, derangements, sustained significant significant injuries spine diagnosed sprains/strains and musculo-skeletal musculo-skeletalligamentous injuries as a result result of 2012 sprains/strains ligamentous injuries of the May 7, 2012 accident. As of plaintiffs plaintiff's last last treatment treatment on April plaintiff was disabled from accident. April 5, 2013, 2013, plaintiff was still disabled from all activities more more demanding demanding than Cardenas opined opined that that these injuries activities than sedentary. sedentary. Dr. Cardenas these injuries prevented plaintiff plaintiff from from performing performing substantially substantially all of the material material acts acts which constituted prevented which constituted 2012 through April 5, 2013. 2013. her usual activities from usual and customary customary daily daily activities from May May 7, 7,2012 through at least least April Plaintiff was precluded precluded from required exertion Plaintiff from any activities activities required exertion and stress-bearing stress-bearing or weight weight bearing of her lumbar lumbar spine. bearing spine. opposition, as to liability, liability, defendant defendant merely merely argues argues that that her liability liability is an issue issue of In opposition, fact serious injury, defendant argues that issues of fact exist. Defendant Defendant fact for the jury. jury. As to serious defendant argues that issues of fact argues that that plaintiffs plaintiff's affidavit contradicted by her deposition Defendant argues affidavit is contradicted deposition testimony. testimony. Defendant submits plaintiff's plaintiff's deposition deposition testimony argues that that plaintiff plaintiff testified testified that that she was only only submits testimony and argues she was confined to bed for for four days after after the accident and that that the only activities that limited confined four days the accident only activities that were were limlted as a result result of accident was bending, sitting, sitting, standing for long periods periodS of time of the accident was bending, standing for time and sleeping. Defendant also also argues plaintiff stated 2013, was sleeping. Defendant argues that that in her affidavit affidavit plaintiff stated that that April April 5, 2013, the the end period period of her her incapacity. incapacity. plaintiff points points out that affidavit does state that her incapacity incapacity In reply, plaintiff that her affidavit does not state that her ended 2013, rather, she attested attested that "complete incapacity incapacity due that "complete due to the accident accident ended on April April 5, 2013, lasted well after office visit visit on April 2013, for the purposes purposes of this affidavit, affidavit, ... lasted after my last office April 5, 2013, April 2013 is used as the end of period of incapacity." April 5, 2013 of the period of incapacity." Discussion Discussion The proponent proponent of a motion motion for summary must make make a prima prima facie facie The summary judgment judgment must showing entitlement to judgment matter of law, tendering tendering sufficient evidence to showing of of entitlement judgment as a matter sufficient evidence eliminate any any material material issues issues of fact from the case case (see (see Winegrad Winegrad v N. Y. Y. Univ. Med. Ctr., eliminate fact from [1985]; Zuckerman Zuckerman v City of of New New York, 49 NY2d NY2d 557, 562 [1980]). [1980]). 64 NY2d 851, 853 [1985]; Failure to make make such requires denial denial of motion, regardless regardless of the sufficiency Failure such showing showing requires of the motion, sufficiency of the opposing papers (see (see Winegrad Winegrad v N. Y. Y. Univ. Med. Ctr., 64 NY2d NY2d at 853). opposing papers "Once this showing showing has been made, made, however, however, the burden burden shifts party "Once shifts to the party opposing the motion motion for summary produce evidentiary evidentiary proof proof in admissible opposing summary judgment judgment to produce admissible establish the the existence of material material issues issues of of fact require a trial of form sufficient sufficient to establish existence of fact which which require (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d 320, 324 [1986]; [1986]; see Zuckerman City the action" action" (Alvarez Zuckerman v City of New New York, 49 NY2d NY2d at 562). Mere Mere conclusions, conclusions, expressions expressions of of hope hope or unsubstantiated unsubstantiated of allegations or assertions assertions are insufficient insufficient to defeat prima facie showing of entitlement entitlement to allegations defeat a prima facie showing summary judgment New York, 49 NY2d NY2d at 562). summary judgment (see Zuckerman Zuckerman v New ·. 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 06/27/2017 12:46 PM NYSCEF DOC. NO. 40 INDEX NO. 58116/2015 RECEIVED NYSCEF: 06/27/2017 Index No. 58116/2015 58116/2015 Bush v. Reina, Index I.I. Liability Liability Traffic Law 1123 Plaintiff argues 1123 as a matter matter Vehicle and Traffic violated Vehicle defendant violated that defendant argues that Plaintiff determine. jury to determine. for a jury fact for of law. Defendant Defendant argues issues of fact there are issues that there argues that judgment as a matter Plaintiff established established her her prima prima facie entitlement to judgment matter of of law by facie entitlement Plaintiff vehicle by presented uncontroverted uncontroverted evidence evidence that attempted to overtake overtake her vehicle defendant attempted that defendant presented violation turn, in violation passing on the plaintiff was process of making making a right-hand right-hand turn, the process was in the the right as plaintiff passing ofVTL negligence as a matter matter constitutes negligence Traffic Law constitutes Vehicle and Traffic the Vehicle of the violation of VTL 1123. A violation of AD2d 201 0]; Botero of Vainer v DiSalvo, DiSalvo, 79 AD3d Dept 2010]; Botera v Erraez, Erraez, 289 289 AD2d AD3d 1023 [2d Dept of law (see Vainer was 274 [2d Dept Dept 2001]). 2001]). Through her affidavit, plaintiff established established that that defendant defendant was affidavit, plaintiff Through her negligent as a matter matter of negligence was sole proximate proximate the sole was the defendant's negligence that defendant's of law and that negligent cause of the negligence on her part part (see Dimou Dimou v comparative negligence any comparative without any accident, without the accident, cause 0]). 201 Dept lataura, AD3d Dept 2010]). [2d 732 AD3d 72 latauro, opposition, defendant defendant fails issue of the issue issue of liability. liability. Mere Mere fact on the of fact fails to raise an issue In opposition, assertions are conclusions, hope or unsubstantiated allegations allegations or assertions or unsubstantiated expressions of hope conclusions, expressions New York, of New Zuckerman v City insufficient to defeat City of judgment (see Zuckerman summary judgment for summary motion for defeat a motion insufficient 49 NY2d NY2d 557, 562 [1980]). [1980]). Therefore, Therefore, plaintiff's plaintiff's motion motion for summary judgment judgment on the for summary issue of liability liability is granted. granted. issue II. Serious Injury Injury Serious which prevented Plaintiff argues medically determined injury which prevented determined injury sustained a medically that she sustained argues that Plaintiff constituted her which constituted the material performing substantially substantially all of the material acts which her usual usual and from performing her from the 180 days during the days during than 90 days customary daily activities activities for days immediately immediately for not less than customary daily that demonstrates following the accident. She further argues that the evidence demonstrates that she evidence the accident. She further argues that following sustained limitation of use of a body body function. function. significant limitation sustained a significant Under the "no fault" maintain an action action for personal injury, a plaintiff plaintiff for personal order to maintain fault" law, in order Under Licari v Elliott, must establish "serious injury" injury" has been been sustained sustained (see (see Licari Elliott, 57 NY2d that a "serious establish that must which 230 [1982]). Insurance Insurance Law Law 5102(d) 5102(d) defines defines "serious injury" as "a personal personal injury injury which "serious injury" 230 [1982]). results in death; death; dismemberment; dismemberment; significant significant disfigurement; fetus; fracture; loss of a fetus; disfigurement; a fracture; results permanent loss of body organ, organ, member, member, function system; permanent permanent function or system; of use of a body permanent significant limitation organ or member; consequential limitation of use of body organ member; significant limitation of of use of of of a body consequential limitation nona of impairment a body body function or system; or a medically determined injury or impairment noninjury determined medically system; function permanent nature nature which which prevents prevents the injured injured person person from from performing performing substantially substantially all of permanent for activities for daily activities the material material acts acts which constitute such person's person's usual usual and customary customary daily which constitute following the not less than than ninety ninety days during the one hundred hundred eighty days immediately immediately following eighty days days during occurrence of the injury injury or impairment." impairment." occurrence Under the "90/180" "90/180" category, category, "a plaintiff plaintiff must must present present objective objective evidence evidence of a Under Avis Rent medically determined determined injury injury of non-permanent nature" nature" (Toure (Toure v Avis Rent A Car Car of a non-permanent medically Systems, 98 NY2d NY2d. 345, 357 (2002]; [2002]; Licari NY2d 230). Plaintiff Plaintiff must must Licari v Elliott, 57 NY2d Systems, days demonstrate her usual usual daily daily activities restricted during during 90 of the the 180 days were restricted activities were that her demonstrate that findings of a following the accident accident and submit submit evidence evidence based based on objective objective medical medical findings following 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 06/27/2017 12:46 PM NYSCEF DOC. NO. 40 INDEX NO. 58116/2015 RECEIVED NYSCEF: 06/27/2017 Index No. 58116/2015 58116/2015 . Bush v. Reina, Index caused the medically determined determined injury injury or impairment impairment which the alleged alleged limitations limitations in her which caused medically v Eyler, 79 Gaddy 345; NY2d 98 Systems, Car daily activities (see Toure v Avis Rent A Car Systems, NY2d Gaddy Rent Avis daily activities (see NY2d 95.5 955 [1992)). [1992)). NY2d well as an support of of her claim, claim, plaintiff plaintiff submits submits her own affidavit affidavit as well Here, in support affirmation from from her her treating treating doctor doctor attesting attesting that that plaintiff plaintiff has sustained sustained an injury injury that that affirmation acts which prevented her from performing substantially material acts which constitute constitute her substantially all of the material from performing prevented the during days ninety usual and customary customary daily daily activities activities for not less than hundred than ninety days during the one hundred usual compl~tely was she that attests eighty days immediately following accident. Plaintiff attests that was completely Plaintiff accident. the following immediately days eighty disabled from from her job least April 2013, and that that her doctor doctor r~commended recommended that that April 5, 2013, job until at least disabled .· she refrain refrain from from work work and physical physical activities activities until further further notice. notice. Dr. Cardenas Cardenas averred averred from all activities was still disabled that as of of plaintiff's plaintiff's last last treatment April 5, 2013, 2013, she was disabled from activities treatment on April that prevented these injuries that these more demanding demanding than than sedentary. sedentary. Dr. Cardenas Cardenas opined opined that injuries prevented more her usual constituted which acts material plaintiff from performing substantially all of the material acts which constituted of plaintiff from performing substantially April 5, 2013. customary daily daily activities activities from 7,2012 through at least least April 2013. Defendant Defendant 2012 through from May 7, and customary evidence. plaintiffs refute to submitted any any proof proof in admissible admissible form form refute plaintiffs evidence. TheThe has not submitted fact. of fact. submission plaintiffs deposition testimony fails fails to raise an issue issue of deposition testimony of plaintiffs submission of she sustained that she demonstrating that of demonstrating The plaintiff also also met met her prima prima facie burden of sustained facie burden The plaintiff subject accident a significant significant limitation limitation of of use of a body body functiqn function as a result result of the subject accident (see Rent A Car Car Sys., 98 NY2d NY2d at 350; Gaddy Gaddy v Eyler, 79 NY2d NY2d at 956-957). 956-957). The Avis Rent Toure v Avis demonstrating form demonstrating that plaintiff submitted submitted competent competent medical medical evidence evidence in admissible admissible form that she plaintiff failed to raise The defendant sustained serious injuries to the lumbar regions regions of of her her spine. spine. The defendant failed raise the lumbar serious injuries sustained triable issue issue of fact fact in opposition opposition (see (see Carmody Carmody v Bald, Bald, 102 AD3d AD3d 904 [2d Dept Dept 2013]). 2013)). a triable Conclusion Conclusion Accordingly, plaintiffs motion motion for for summary summary judgment issue of of liability liability is judgment on the issue Accordingly, plaintiffs respect with GRANTED and the motion motion is GRANTED GRANTED on the issue issue of serious serious injury injury respect to the GRANTED 90/180 and significant significant limitation limitation category. category. That branch of of plaintiff's plaintiffs motion motion to strike strike several several That branch 90/180 failed defendant since defendant's affirmative affirmative defenses defenses is also also GRANTED GRANTED since failed to address address of defendant's . . defendant papers. that branch branch of the motion in the opposition opposition papers. the motion that The parties are directed directed to appear appear in the the Settlement Settlement Conference Conference Part on J_uly July 18, The parties gs. further-proceedin for further 2017, room 1600, 1600, at 9:15 9:15 a.m. for proceedings. 2017, Dated: Dated: York White Plains, New New York White Plains; June 27, 2017 June 27,2017 ~~~-'~. GIACOMO, J.S.C. MASTER LIST LIST - WESTCHESTER/Bush WESTCHESTER/Bush v. Reina Reina ALPHABETICAL MASTER H: ALPHABETICAL 5 [* 5] 5 of 5

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