Gordon v Dezego

[*1] Gordon v Dezego 2017 NY Slip Op 51934(U) Decided on June 23, 2017 Supreme Court, Kings County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2017
Supreme Court, Kings County

Sonia Gordon, Plaintiff,

against

Stephen Dezego, JOANNE MELOSH AND MARGARET GORDON, Defendants.



3400/14



Attorneys for plaintiffs

Law Offices of Sean H. Rooney

26 Court St Suite 1816, Brooklyn, NY 11242

(718) 243-2168

Attorneys for defendants

Hannum Feretic Prendergast & Merlino, LLC

One Exchange Plaza 55 Broadway, Suite 202 New York, NY 10006

212-530-3900

Attorneys for Defendants Dezego & Melosh

LONGO & D'APICE, ESQS.

26 Court St, Suite 1700Brooklyn, NY 11242

718-722-7300

Attorneys for defendant Gordon
Paul Wooten, J.

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits

Answering Affidavits — Exhibits (Memo)

Replying Affidavits (Reply Memo)

Motion sequence numbers 2 and 4 are consolidated for the purpose of disposition.

This is an action commenced by Sonia Gordon (plaintiff) to recover monetary damages against Stephen Dezego (Stephen), Margaret Gordon (Margaret), and Joanne Melosh (Joanne) (collectively, the Melosh defendants) for personal injuries allegedly sustained by the plaintiff after an automobile accident that occurred on July 9, 2013 on Avenue X at its intersection with East 19th Street in Brooklyn, New York. Plaintiff, a front seat passenger in the vehicle operated by her daughter Margaret avers that Margaret's vehicle was struck by a vehicle owned by Stephen and operated by Joanne after Joanne failed to yield for a stop sign controlling her direction of travel and negligently entered the intersection. Before the Court is a motion plaintiff for an Order, pursuant to CPLR 3212, for summary judgment on the issue of liability against the Melosh defendants (motion sequence 2). The Melosh defendants are in opposition to the motion. Also before the Court is a motion by the Melosh defendants for summary judgment, pursuant to CPLR 3212, dismissing the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 4). Plaintiff is in opposition to this motion.

In support of her motion for summary judgment on liability, plaintiff submits, inter alia, a copy of the pleadings and her Examination Before Trial (EBT) testimony. In opposition the Melosh defendants submit an attorney affirmation.

SUMMARY JUDGMENT STANDARD

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Winegrad v NY Univ. Medical Cntr., 64 NY2d 851, 853 [1985]). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Zuckerman v City of NY, 49 NY2d 557, 562 [1980]).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; CPLR 3212[b]).

DISCUSSION

A. Plaintiff's motion for liability

To prevail on a motion for summary judgment on the issue of liability, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault" (Derieux v Apollo NY City Ambulette, Inc., 131 AD3d 504, 504-505 [2d Dept 2015]; Zhu v Natale, 131 AD3d 607, 608 [2d Dept 2015]), as there can be more than one proximate cause of an accident (see id.). "[A] plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident" (Phillip v D & D Carting Co., Inc., 136 AD3d 18, 23 [2d Dept 2015]). "Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault" (id.; see Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055 [2d Dept 2012]).

Pursuant to Vehicle and Traffic Law § 1142(a), "a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard" (see Wolf v Cruickshank, 144 AD3d 1144, 1144 [2d Dept 2016]). "A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142[a] and is negligent as a matter of law" (Luke v McFadden, 119 AD3d 533, 533 [2d Dept 2014]; see also Francavilla v Doyno, 96 AD3d 714, 715 [2d Dept 2012]). Moreover, "a driver who has the right-of-way is entitled to anticipate that the other vehicle will obey the traffic law that requires them to yield" (see Wolf,144 AD3d at 1144). However, "[t]here can be more than one proximate cause of an accident" (see Gobin v Delgado, 142 AD3d 1134 [2d Dept 2016], quoting Cox v Nunez, 23 AD3d 427, 427 [2d Dept 2005]). Evidence that one driver "ran" a stop sign does not preclude a finding that comparative negligence on the part of the other driver contributed to the accident (id. at 427). Thus, a driver who lawfully enters an intersection may nevertheless be found partially at fault for an accident if that driver fails to use reasonable care to avoid a collision with another vehicle at an intersection (see Exime v Williams, 45 AD3d 633, 633 [2d Dept 2007]).

The Court finds that plaintiff's motion must be denied as triable issues of fact exist regarding the circumstances of the accident and which defendant, if any, was negligent in the happening of the accident. Specifically, according to her deposition testimony, plaintiff testified that at no time prior to the impact did she observe defendants' vehicle (plaintiff's exhibit E, Gordon Tr. at 23). Plaintiff also stated that she did not know how the accident happened, and although she spoke with her daughter about how the accident happened, she could not recall the sum and substance of that conversation at her deposition (id. at 39). Plaintiff fails to attach an affidavit or the EBT testimony of one of the other parties who may have actual knowledge of how the accident happened. Given that there may be two completely disparate versions of the events leading up to the accident, it would be impossible for this Court to make any finding as to the respective liability of the defendants herein, which must be determined by a trier of fact. It is true that "[a] plaintiff's right as an innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of comparative fault as between the owners and operators of the two vehicles involved in the accident" (Phillip, 136 AD3d at 24-25). However, "[t]his matter involves more than simply a trier of fact's apportionment of fault between both defendants" (id. at 25, quoting Anjum v Bailey, 123 AD3d 852, 853 [2d Dept 2014]). Accordingly, the plaintiff is not entitled to summary judgment on the issue of liability as against the defendants. However, this Court does recognize that the uncontested facts in this [*2]case are that plaintiff was a passenger in Margaret's vehicle and her EBT testimony compels a conclusion that she was free from fault in the happening of the accident herein.

B. Melosh defendants' motion on serious injury

SERIOUS INJURY THRESHOLD

A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230 [1982]). 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 loss]; permanent consequential limitation of use of a body organ or member [permanent consequential limitation]; significant limitation of use of a body function or system [significant limitation]; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing 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 [90/180].

The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under at least one of the claimed categories. "Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104[a]). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to "'weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). As such, to satisfy the statutory threshold, the plaintiff is required to submit competent objective medical proof of his or her injuries (id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).

BURDEN OF PROOF

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). Where a defendant is the movant, the defendant, bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102(d) (see Toure, 98 NY2d at 352; Gaddy v Eyler, 79 NY2d 955, 956-57 [1992]). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [1st Dept 2006]).

"In cases such as the present one, 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" (Grossman v Wright, 268 AD2d 79, 83-84 [2d Dept 2000]). "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" (id.; see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman, 268 AD2d at [*3]84). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id.; Kauderer v Penta, 261 AD2d 365 [2d Dept 1999]).

The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 NY2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id.).

After a review of the record, the Court finds that the Melosh defendants have sustained their initial burden of establishing prima facie that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102[d] as a result of the subject accident on January 19, 2014 (see Jean-Pierre v Park, 138 AD3d 1064 [2d Dept 2016]; Olagunju v Anna & Diane Cab Corp., 139 AD3d 924 [2d Dept 2016]). The Melosh defendants objective medical evidence, the report of Dr. Marvin Winell, M.D., evidences that the injuries sustained by the plaintiff are resolved, that there is no objective evidence of any disability, and that plaintiff is able to perform her normal daily living without restrictions. Specifically, Dr. Winell performed an examination of plaintiff's cervical and lumbosacral spine and her knees and concluded that plaintiff's cervical, thoracic and lumbar spine sprain/strain are resolved. Dr. Winell also concluded that plaintiff's chest contusion is resolved and plaintiff's bilateral knee sprains/contusions are also resolved (see Melosh defendants' exhibit F; see also Hayden v Plotkin, 278 AD2d 455, 455 [2d Dept 2000] ["the defendant established a prima facie case that the plaintiff's injuries were not serious through the affirmed report of an orthopedist, who examined her and concluded that she sustained nothing more serious than a mild knee contusion which had resolved"]).

In opposition, plaintiff fails to submit sufficient evidence to raise a triable issue of fact with regard to whether she sustained a serious injury as a result of the accident (see e.g. Villalta v Schecter, 273 AD2d 299 [2d Dept 2000]; D'Alba, 33 AD3d at 651; Piperis v Wan, 49 AD3d 840 [2d Dept 2008]; Sapienza v Ruggiero, 57 AD3d 643 [2d Dept 2008]). The court finds that the physician's affirmations of Dr. R.C. Krishna, M.D.; Dr. Pushp Bhansali, M.D.; and the radiological report of Dr. Harold Parnes, M.D., fail to raise triable issues of fact in multiple respects. Firstly, while Dr. Krishna concludes that plaintiff suffers from range of motion limitations to her cervical and thoracolumbar spine, Dr. Krishna fails to set forth the objective test or tests utilized to measure range of motion (see Durand v Urick, 131 AD3d 920 [2d Dept 2015]; Knopf, 69 AD3d at 810; Piperis, 49 AD3d at 841). While Dr. Krishna indicated that she performed the range of motion test using a "bedside compass", this Court has no indication that this method is an accepted peer review instrument. Secondly, while Dr. Bhansali found similar range of motion limitations to plaintiff's cervical and lumbar spine and plaintiff's right knee, Dr. Bhansali merely states "the above mentioned range of motion were objectively measured" but fails to proffer the objective test or instrument, if any, that was used. Lastly, while Dr. Parnes radiological report showed a posterior bulge and a posterior herniation to plaintiff's lumbar spine, these injuries do not constitute a "serious injury" pursuant to the Insurance Law (see e.g. Cerisier v Thibiu, 29 AD3d 507, 508 [2d Dept 2006] ["The mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration"]; Piperis, 49 AD3d at 841; Sapienza, 57 AD3d 643; Byam v Waltuch, 50 AD3d 939, 940 [2d Dept 2008] ["Strains and sprains are not considered serious injuries under Insurance Law § 5102(d)]; Washington v Cross, 48 AD3d 457 [2d Dept 2008]).

Accordingly, the Melosh defendants' motion for summary judgment dismissing the complaint on the grounds that plaintiff did not incur a serious injury as defined under Insurance [*4]Law § 5102 is granted (see Jean-Pierre, 138 AD3d at 1064; Terranova v Acosta, 136 AD3d 710 [2d Dept 2016]).

CONCLUSION

Accordingly is it hereby,

ORDERED plaintiff's motion for summary judgment [MS 2] on the issue of liability against the Melosh defendants is denied; and it is further,

ORDERED that the Melosh defendants' motion for summary judgment on the issue of serious injury [MS 4] is granted and the Complaint is dismissed as to those defendants; and it is further,

ORDERED that counsel for the Melosh defendants shall serve a copy of this Order with Notice of Entry upon all parties and the County Clerk of Kings County who is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

Dated: June 23, 2017

HON. PAUL WOOTENJ.S.C.