Verno v Fahey

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Verno v Fahey 2018 NY Slip Op 34329(U) April 24, 2018 Supreme Court, Westchester County Docket Number: Index No. 68975/16 Judge: David F. Everett 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. INDEX NO. 68975/2016 FILED: WESTCHESTER COUNTY CLERK 04/26/2018 04:36 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/26/2018 To commence period for appeal~ as of under CPLR commence th~ JO-day 30-day statutory statutory time time period of right right under CPLR 5513 5513 (a), (a), you you are advised advised to serve serve a copy order, with upon all parties. parties. ·copy of of this order, with notice notice of of entry, entry, upon SUPREME NEW YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY ---------------·__________________ -------_----------------.----X ----------------~------------------~-------~----------------:----)( NANCY NANCY VERNO, VERNO, Plaintiff, Plaintiff, Index No. 68975/16 Index No. 68975/16 Motion Sequence Sequence No. Motion No. 001 Decision Decision and and Order Order -against-againstROSE ROSE G. FAHEY, FAHEY, Defendant. Defendant. -----------, --------- ·------------------------- . ----------------X -----------~---------~------------------------_._----------------)( EVERETT, EVERETT, J. The following following papers papers were were read read on the motion: motion: Notice of Motion/Affirmation Motion/Affirmation in Supp/Exhibits SupplExhibits A-F/Aff A-F/Aff of ofServ (docs 25-33) 25-33) Notice of Serv (docs In this personal personal injury, plaintiff Nancy Nancy Vemo (Vemo) pursuant to injury, plaintiff Verno (Verno) moves moves for orders, orders, pursuant ) .. ) . CPLR summary judgment judgment against on the CPLR 3212, 3212, granting granting summary against defendant defendant Rose Rose G. Fahey Fahey (Fl:!hey) (Fl:!hey)on // I/ \ questions questions of of liability liability and whether whether she sustained sustained a sei;ious ser:ious injury injury as defined defined under under Insurance Insurance Law Law § g 5103 (d). Vemo also seeks Verno also seeks an order order striking striking Fahey'saffirmative Fahey's affirmative defenses defenses sounding sounding in comparative negligence, negligence, culpable culpable conduct, conduct, lack lack of of serious serious injury, injury, and failure failure to use use a seatbelt, seatbelt, comparative and based based on her contention contention that that the accident accident was caused caused by circumstances circumstances outside outside of of her her control. control. Upon the foregoing foregoing papers, UI;opposed motion.is motionjs granteg°' granteg\- · Upon papers, .the u1;opposed ,· ,- \ '\ The following pleadings, motion papers, affidavits, following facts facts are taken taken from from the pleadings, motion papers, affidavits, documentary documentary evidence and the record, otherwise indicated. indicated. evidence record, and are undisputed undisputed unless unless otherwise Plaintiff commenced commenced the . instant instant. action action by,filing summons and and complaint complaint in the Office. Offic~ · Plaintiff by, filing a summons . of the Westchester Westchester County County Clerk Clerk on December December 15, 2016, 2016, to recover damages for in}uries injuries she of _recover damages . . ' . ' . allegedly sustained sustained as a result result of of a head~on head-on automobile automobile accident accident that that occurred occurred on September September 2 21, allegedly I, ( [* 1] 1 of 5 fI FILED: WESTCHESTER COUNTY CLERK 04/26/2018 04:36 PM NYSCEF DOC. NO. 38 INDEX NO. 68975/2016 RECEIVED NYSCEF: 04/26/2018 2016. According According to Verno, Verno, the the a~cident a~cident occurred: occurred on Lovell Lovell Street Street in the the Town Town of of Somers, Somers, New New York, York, when, when, at-approximately at-approximately 12:46 12:46 p.m.,Fahey's p.m., Fahey's vehicle vehicle crossed crossed the the doubleyellow double yellow line line into into Vemo's the .front that, Verno's lane. and struck struck front ofVerno's of Verno's vehicle. vehicle. Vei:no Verno alleges alleges that, as a result result ofFahey's of Fahey's I . negligence, negligence, she sustained sustained seriousphysi~al serious physi~al injuries, injuries, whichmeet which meet the No-Fault No-Fault threshold threshold for . . recovery recovery based based on non non economic economic los's for pain pain and suffering: suffering: Issue Issue wasjoined wasjoined by serviee serviee of of Fahey's Fahey's answer answer with with affirmative affirmative defenses defenses on or.about or about January January 5, 5, 2017. 2017. The The parties parties conducted conducted extensive follow-up compliance extensive discovery discovery pursuant pursuant to the preliminary preliminary conference conference and follow-up compliance conference conference orders, and on.February on February 9, 9,.2018, Verno filed a note note of of issue issue and certificate certificate of of readiness. readiness. orders, 2018, Verno Verno judgmept, and Fahey does Verno now now moves moves for summary summary judgment, and/Fahey does not not oppose oppose any part part of of the motion. motion. New York Under Under New York l~w, it is well well settl_~d settted that that the proponent proponent of of the the motion motion for summary summary judgment i:nust judgment J?ust tender tender evidentiary evidentiary proof proof in adm.issible admissible form sufficient sufficient to warrant warrant the the court court to_: to _direct judgment ~n direct judgment in her her favor favor as· as a matter matter of of la_w law on the issues issues of of liability liability and severity severity of of injuries injuries (Zuckerman (Zu1ckerman v City City ofNew o/New York, 49-NY2d 49 NY2d 557,-562 557;562 [1980]; [1980]; CPLR3212-{b]). CPLR321.2 [b]). It is also also well well . settled New York settled in New York that that "[c]rossing "[c ]rossing a double double yellow yellow line into into the the opposing opposing lane lane of of traffic, traffic, in .~ -~ / ', violation law, unless violation of of Vehicle Vehicle and Traffic Traffic Law§ Law 9 1126 (a), constitutes constitutes negligence negligence as a matter matter of oflaw, unless I! justified by an emergency justified emergency situation situation not not of of the the driver's driver's own own making" making" (Foster (Foster v Sanchez, Sanchez, 17 AD3d AD3d I / 312,313 312,313 [2d Dept Dept 2005)). 2005]). · As As indicated indicated above, above, Fahey Fahey does does not not denydrivi~g deny driving her her vehicle vehicle across across rr double yellow yellow line line on Lo~ell Lovell Street, Street, and into the opposing opposing lane lane of of traffic, traffic, whe~~ whe~e she struck struck the double I I / (( V emo' s vehicle. Verno's vehicle. ! I I I t With/respect New York's No-Fault_ With/respect to Vemo's,cl1;1im Verno'scl:;tim ofserious of serious physical physical injuries, injuries, under under New York's No-Fault. a law, as codified-under codified under Article Article 51 of of the Insurance Insurance Law, a person person who who is injured injured in an automobile automobile / ~ ; ' I 2 I f [* 2] 2 of 5 INDEX NO. 68975/2016 FILED: WESTCHESTER COUNTY CLERK 04/26/2018 04:36 PM \. NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/26/2018 l1 i! II accident accident can only only recover recover for pain pain and suffering suffering from·the from-the owrier owner or driver driver of of the offending offending vehicle vehicle if person constitute if one or more more of of the injuries injuries sustained sustained by the person constitute a serious serious injury injury within within the meaning meaning of of the Iq.surance Il1surance Law. In;urance In~urance Law§ Law S 5102 (d) defines defines a serious serious i~jury injury as: "a personal injury results in death; "a personal injury which whichfesults death; dis~e~berment; disrr;e~berment; significant significant · disfigurement; permanent loss of disfigurement; a fracttire; fracttire; loss loss ofa ofa fetus; permanent of use of of a-body a'body organ, 'organ, member, permanent consequential member, function function or system; system; permanent consequential limitation limitation of of a use use of of a body organ or member; member; significant significant limitation limitation of of use of of a body body function function or system; system; body organ or a medically medically determined determined injury injury or impairment impairment of of a non-permanent non-permanent nature nature which which prevents injured person substantially all of of the the material material acts prevents the injured person from performing performing substantially which person's usual usual and customary which constitute constitute such such person's customary daily daily activities activities for not less than eighty days immediately immediately following than ninety ninety days during during the one hundred hundred eighty following the occurrence the injury occurrence ·of 'ofthe injury or impairment." impairment." To make judgment, Verno make the requisite requisite showing showing for summary summary judgment, Verno submits submits copies copies of of the ,~ '~ ' ' , pleadings, certified copy copy of of the police reportrelative accid~nt; her her deposition deposition transcript; transcript; pleadings, a certified police report relative to the accid~nt; and certified certified records records of of Westchester Westchester Medical Medical Center, Center, the thefacility which she was was removed removed for facility to which medical medical treatment treatment following following the accident. accident. In her her deposition, deposition, Verne Verno explained explained that, when-she when-she firstobserved first observed Fahey's Fahey's vehicle, vehicle, it was traveling traveling in her (Verno's)lane, (Verno's)lane, then then corrected corrected back back into Fahey.'s Fahey',s own own lane. Vernoforther Verno further explained explained that she responded responded to the movement movement of of Fahey's Fahey's vehicle vehicle by slowing slowing her her own own vehicle vehicle to about JO0 miles per hour, pulling as far over about J miles per hour, and and by pulling over to the side of of the roa~ as she could could to tryto trito . . · avoid per hour avoid the oncoming oncoming vehicle, vehicle, which which was traveling traveling at about about 40 to 45 miles miles per hour (Verno (Verno tr at . 41, 42, 43)..._Verno back into 41,42,43) Verno testified testified that that Fahey Fahey then then crot~ed crot~ed back into her her (Verno's) (Verno's) lane lane and and drove drove head-on head-on into the front front of of her her vehicle vehicle (id. at 32-46, 32-46, generally). generally). Verno Verno described described the impact impact as a . ', . "crushing'' 60). "crushing" ofthefront of the Jront of.her of-her vehicle vehicle and of of her right right leg,,which leg"which was was left left dangling dangling (id. at 47, 47,60). She recalled police arriving recalled the police arriving at the scene scene and being being taken taken by ambulance ambulance to Westchester Westchester · Medical Medical Center, Center, where where she underwent underwent surgery surgery for a fracture fracture of of the tibia tibia and fibula fibula of of her her right right 3 !' , 1· 't r [* 3] 3 of 5 JJ FILED: WESTCHESTER COUNTY CLERK 04/26/2018 04:36 PM NYSCEF DOC. NO. 38 INDEX NO. 68975/2016 RECEIVED NYSCEF: 04/26/2018 ankle her other injuries, which fractures of right wrist, was treated treated, for her other injuries, which include include fractures of her her right wrist, her . ,.and was '" .'~ ' . ,- - . ' _ sternum sternum and her neckaIldback 64,65). Verno testified testified that was her neck and back between between C7 and T4 (id. at 64, 65). Verno that she was subsequently Medical Cente~ to the Helen subsequently transferred transferred from Westchester Westchester Medical Helen Hayes Hayes Rehabilitative Rehabilitative Hospital where she remained until October 2016.. Hospital where remained until October 15, 15,2016 Both the .certified certified police police report report and the certified hospital records records confirm .Both certified hospital confirm Verno's Verno's testimony, this evidence, evidence,.Verno establishes prima entitlement to judgment testimony, and by this Verno establishes prima facie entitlement judgment as a ~ ~ injuries (see Zuckerman Zuckerman v City New York, matter of matter of law as to liability liability and the severity severity of of her injuries City of a/New 49 NY2d NY2d at 562). Having burden shifts Fahey to raise Having made made this showing, showing, the burden shifts to Fahey raise a question question of of judgment (id.). Fahey, Fahey, who who does opposition to . fact sufficient sufficient to forestall forestall sllmmary s~mmary judgment does not submit submit opposition does not challenge any ofVerno's·asse.rtions, of V erno' s 'assertions, including the severity of her her injuries, injuries, the motion, motion, does not challenge including the severity of Fahey claim that she crossed crossed the double double yellow emergency situation situation (see nor does Fahey claim that yellow line due to an emergency Foster Sanchez, 17 AD3d AD3d at 313), 313); By failing failing to oppose oppose or contest contest any ofVerno's of Verno's factual factual! Foster v Sanchez, 1 assertions, Fahey, in effect, effect, concedes 90ncedes that that n"o n'Oquestions of fact exist exist(see assertions, Fahey, questions of (see Kuehne Kuehne & Nagel Nagel v Baiden, [1975]; see also Admiral Baiden, 36 NY2dS39, NY2d 539, 544 [1975]; Admiral Ins. Co. v Marriott Marriott IntI., Intl., Inc., Inc., 79 AD3d AD3d 1 Dept 2010]). 572, 577 [I5 [15tDept 2010]). 572,577 appearing to the Court Court that entitled to judgment liability and as to the It appearing that plaintiff plaintiff is entitled judgment as to liability '· severity of of her claimed injuries,.and triable issues issues of of fact arising arising on plaintiff's severity her claimed injuries, .and that that the only triable plaintiff's \. motion for summary summary judgment relate to the amount amou~t of damages to which which plaintiff entitled, it is motion judgment relate of damages plaintiff is entitled, ORDERED that that plaintiff's granted as to liability severity of of her her ORDERED plaintiff's motion motion is granted liability and as to the severity J) claimed injuries; injuries; and it is further further claimed \\ ORDERED that that defendant's defendant's affirmative affirmative defenses defenses are stricken; stricken; and and it is-further is.further ORDERED ORDERED that that counsel counsel shall appear appear in the Settlement Settlement Conference Conference Part Part in courtroom courtroom ORDERED 4 (( [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 04/26/2018 04:36 PM NYSCEF DOC. NO. 38 INDEX NO. 68975/2016 RECEIVED NYSCEF: 04/26/2018 Westchester County County Courthouse, Courthouse, 111 111 Dr. Martin Martin ½uther ~'Uther K~ng, K~,ng,Jr., Blvd., White White Plains, Plains, 1600, We~tchester Jr., Blvd., New Yark, on Tuesday, Tuesday, May May 29, 2018! 20 18~at 9: ~5 a.m., a.m., to schedule schedule a trial trial ·on 'on damages. damages. New York, at 9:J5 This constitutes constitutes the the decision decision and order order of of the the Court. Court. This Dated: White White Plains, plains, New York Dated: New York -' April 24, 24, 2018: 2018' ENTER: ENTER: ~~-' _/ HON. DAVID DAVID F. EVERETT, EVERETT, A.J.S.C. A.J.S.C. HON. '\ Gabriel Law Law Firm, Firm, P.C. P.C. Gabriel Park Avenue Avenue 3351 Park Wantagh, -W antagh, NY NY 11793 Boeggeman, Corde, Corde, Ondrovic Ondrovic & Hurley Hurley P.C. Boeggeman, Barker A Avenue 3 Barker venue White Plains, Plains, NY NY 10601 White ~ // (( 5 [* 5] 5 of 5

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