Negherbon v Gurrera

[*1] Negherbon v Gurrera 2018 NY Slip Op 51220(U) Decided on April 24, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2018
Supreme Court, Kings County

William Negherbon, Plaintiff,

against

Frank W. Gurrera, Defendant.



FRANK W. GURRERA,Third-Party Plaintiff,

against

KAREN PREZIOTTI-FLEISHMAN and LARRY FLEISHMAN,Third-Party Defendants.



19491/2008



Attorneys for plaintiff

Firm Name: Law Office of Peter Panas, P.C.

Address: 112 West 34th Street, 18th Floor

New York, New Yok 10120

Phone: 212-946-4748

Attorney for defendant/ third-Party plaintiff Frank Gurrera

Firm Name: Law Offices of Mitchell Studley

Address: One Hundred Jericho Quadrangle, Suite 124B

Jericho, New York 11753

Phone: 516-336-2908

Attorney for third-party defendants Karen Preziotti-Fleishman and Larry Fleishman

Firm Name: Law Offices of Karen L. Lawrence

Address: 4 Metrotech Center, Suite 2000

Brooklyn, New York 11201

Phone: 516-336-2908
Paul Wooten, J.

PAPERS/NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1, 2, 3, 4

Answering Affidavits — Exhibits (Memo) 5, 6

Replying Affidavits (Reply Memo) 7, 8

Motions sequence numbers 5, 6, 7 and 8 are consolidated for disposition.

This is an action commenced by William Negherbon (Negherbon or plaintiff) to recover monetary damages against Frank W. Gurrera (Gurrera) for personal injuries allegedly sustained due to an automobile accident that occurred on May 2, 2008 on Avenue X between West 3rd Street and West 2nd Street, in Brooklyn, New York. Plaintiff commenced the herein action by filling a Summons and Verified Complaint on July 3, 2008. Gurrera interposed an Answer on October 30, 2008. Gurrera contends that on the date of the accident, Karen Preziotti-Fleishman (Karen), operated a vehicle owned by Larry Fleishman (Larry) (collectively, the Fleishman defendants), when she backed out of a bank's driveway onto Avenue X, causing plaintiff to swerve and collide with Gurrera's vehicle. On November 21, 2008, Gurrera commenced a third-party action against the Fleishman defendants asserting a claim for contribution for any damages awarded to plaintiff. On February 3, 2009, the Fleishman defendants interposed an Answer in the third party action. Plaintiff filed his Note of Issue on June 15, 2016.

Before the Court is a motion by the Fleishman defendants for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's Complaint on the issue of liability (motion sequence 5)[FN1] . Plaintiff is in opposition to the motion. The Fleishman defendants submit a reply. Also before the Court are motions by Gurrera (motion sequence 6) and the Fleishman defendants (motion sequence 7) for an Order: (1) vacating plaintiff's statement of readiness; (2) striking plaintiff's Note of Issue; (3) directing plaintiff to appear for a deposition based on plaintiff's supplemental Verified Bill of Particular (BP), dated June 14, 2016; and (4) extending the time for defendants to move for summary judgment. Plaintiff opposes the motion and Gurrera submits a reply.

Also before the Court is a motion by Gurrera for summary judgment, pursuant to CPLR 3212, for an Order (1) granting liability in his favor against the Fleishman defendants in the third-party action; (2) dismissing plaintiff's Complaint on the issue of liability; and (3) dismissing plaintiff's 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 8). Plaintiff opposes both portions of Gurrera's summary judgment motion, as well as the Fleishman defendants' motion on liability.

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. The Fleishman Defendants' Motion on Liability (Motion Sequence 5)

To establish entitlement to summary judgment on the issue of liability in a motor vehicle collision case, a defendant driver must demonstrate, prima facie, inter alia, "that he or she kept the proper lookout, or that his or her alleged negligence, if any, did not contribute to the accident" (Ellis v Vazquez, 155 AD3d 694, 695 [2d Dept 2017]). "The mere fact that other persons share some responsibility for plaintiff's harm does not absolve the defendant from liability because there may be more than one proximate cause of an injury" (Hain v Jamison, 28 NY3d 524, 528, 529 [2016]); Mazella, 27 NY3d at 706; Jones v Vialva-Duke, 106 AD3d 1052, 1052 [2d Dept 2013] quoting Cox v Nunez, 23 AD3d 427, 428 [2d Dept 2005]). Additionally, "[w]here the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed" (Derdiarian v Felix Contract Corp., 51 NY2d 308, 315 [1980]). In such a case, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Hain, 28 NY3d at 529, Derdiarian, 51 NY2d at 315; see also Calderon v Harrel, 237 AD2d 318, 318-19 [2d Dept 1997]).

Here, the Fleishman defendants argue that this Court should grant their summary judgment on the issue of liability since plaintiff's conduct, namely, riding his bicycle in the center of the road, on the double yellow line, into oncoming traffic, constituted an unforeseeable superseding act which absolved the Fleishman defendants of liability. In support of this argument, the Fleishman defendants submit, inter alia, plaintiff's Examination Before Trial (EBT) transcript, dated September 22, 2015, wherein plaintiff testified that on the date of the accident, he was riding his bicycle on the double yellow line on Avenue X from West 2nd to West 3rd Street (see Notice of Motion [MS 5] exhibit F, Negherbon Tr at 60). Plaintiff stated that at no point in time, after crossing West 2nd Street, did he observe a vehicle backing out of a driveway (id. at 68). Plaintiff further stated that after the accident, he did not tell anyone, including the police, that he swerved around a vehicle backing out of the bank on Avenue X (see id. at 68, 80). Instead, plaintiff testified that the accident occurred as a result of Gurrera's vehicle veering close to the double yellow line and colliding with plaintiff's bicycle (id. at 69, 70, 71).

Moreover, the Fleishman defendants submitted Gurrera's EBT transcript, dated February 9, 2016, wherein Gurrera testified that on the date of the accident, he observed a vehicle, which he later learned to be the Fleishman defendants' vehicle, backing out of a bank driveway (see id., exhibit G, Gurrera Tr at 26). Gurrera stated that upon noticing the Fleishman defendants' vehicle backing out, he stopped his vehicle for approximately three seconds (id. at 30). He further stated that he noticed plaintiff's bicycle about ten feet away (id.). Gurrera averred that his vehicle did not move into the westbound lane or crossed any portions of the double yellow line (id.). When asked "during the three seconds that you were stopped, did the vehicle that was in the bank driveway backing out . . . did that vehicle move in any way?" Gurrera answered that he was not sure (id. at 33). Gurrera testified that plaintiff "slightly moved past the back of the car that was backing out and headed right into me" (id. at 36). Gurrera also testified that plaintiff's bicycle did not make contact with the vehicle backing out of the bank's driveway (id. at 46).

Additionally, the Fleishman defendants submitted an uncertified copy of the MV-104 report, wherein Gurrera stated that he attempted to avoid a motor vehicle that turned in front of him and the bicycle attempted to avoid the same vehicle" resulting in the collision (see Notice of motion [MS 5], exhibit H)[FN2] . However, Gurrera testified that he did not tell the police that a car traveling immediately in front of his turned into the bank (see id, exhibit G, at 39). Yet, plaintiff submitted his sworn affidavit, wherein he states that "Gurrera was trailing a blue sedan . . . the lead vehicle slowed and began to make a right turn into the driveway of a bank . . . as the lead vehicle was making the turn, Gurrera's vehicle swerved to the left and hit my bicycle head on" (see Aff in Opp to MS 5 and 8, Negherbon Aff ¶¶ 2, 3).

After giving consideration to the foregoing papers, the Court finds that the Fleishman defendants have failed to meet their initial burden of entitlement to judgment as a matter of law on the issue of liability. The Court notes that notwithstanding the inconsistencies between the MV-104 accident report, plaintiff's sworn affidavit, and plaintiff's and Gurrera's EBT testimony, [*2]the Fleishman defendants did not attach an affidavit from either the driver or other occupant of their vehicle with salient facts addressing, for example, whether the Fleishman defendants' vehicle was at a bank on the date of the accident, backing out of the bank's driveway, or whether the Fleishman kept a proper look out if said vehicle was backing from the driveway of the bank (see e.g. Ellis, 155 AD3d at 695). Nevertheless, the Court finds that plaintiff's and Gurrera's EBT testimonies, together with plaintiff's sworn affidavit creates a dispute of facts with respect to how the accident occurred and whether the Fleishman defendants' vehicle was a proximate cause of plaintiff's accident (see Ellis, 155 AD3d at 695;Goulet v Anastasio, 148 AD3d 783 [2d Dept 2017]; Fauvell v Samson, 61 AD3d 714 [2d Dept 2009 Ramos v Rojas, 37 AD2d 291, 292 [1st Dept 2007] [finding that "the statement attributed to plaintiff which he denies having made should not serve as grounds to render his direct testimony describing the accident to be incredible as a matter of law . . . the defendant's showing, tending to contradict plaintiff's assertions, raises issues of credibility that should be left to a jury"]). Thus, the Court finds that the Fleishman defendants' motion for summary judgment on the issue of liability (motion sequence 5), must be denied. For the same reason articulated above, the Court finds that the portion of co-defendant Gurrera's motion for summary judgment on the issue of liability (motion sequence 8) must also be denied.

B. Gurrera's Motion for Summary Judgment on Serious Injury (motion sequence 8)

SERIOUS INJURY STANDARD

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 "serious injury" categories as set forth in Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230 [1982]). Insurance Law § 5102(d) defines a "serious injury" as:

"[1]a personal injury which results in death;[2] dismemberment;[3] significant disfigurement;[4] a fracture;[5] loss of a fetus; [6] permanent loss of use of a body organ, member, function orsystem;[7] permanent consequential limitation of use of a body organ ormember;[8] significant limitation of use of a body function or system; or[9] a medically determined injury or impairment of anon-permanent nature which prevents the injured person fromperforming substantially all of the material acts which constitutesuch person's usual and customary daily activities for not lessthan ninety days during the one hundred eighty daysimmediately following the occurrence of the injury orimpairment [the 90/180 category]"

The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under one or more 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 [*3]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, plaintiff is required to submit competent and objective medical evidence of his or her injuries (id. at 350). Plaintiff's subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).

BURDEN OF PROOF ON SUMMARY JUDGMENT

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 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 as to whether a serious injury exists (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 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 l ess 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.). Here, the Court finds that Gurrera has established his prima facie case that plaintiff did not suffer serious injury under Insurance Law § 5102(d), as a result of the May 2, 2008 accident (see Jean-Pierre v Park, 138 AD3d 1064 [2d Dept 2016]; Olagunju v Anna & Diane Cab Corp., 139 AD3d 924 [2d Dept 2016]). In support of his motion, Gurrera submits the 2016 IME report of Dr. Edward Toriello, M.D., an orthopedic surgeon, wherein Dr. Toriello stated that he used an objective medical test to measure plaintiff's range of motion and determined that plaintiff did not suffer range of motion limitations to his cervical, thoracic, and lumbosacral spine, right and left shoulders, right and left knee (see Notice of Motion [MS 8] exhibit P, at 2). Dr. Toriello further determined with a reasonable degree of medical certainty that plaintiff has no objective evidence of continued disability (see id.; Perez v Hilarion, 36 AD3d 537, 537 [1st Dept 2007] [finding that defendants made a prima facie [*4]showing of entitlement to judgment as a matter of law by submitting an affirmation of an orthopedist who opined that plaintiff did not sustain an orthopedic disability related to the accident and plaintiff's other accident related injuries had resolved]).

Moreover, Gurrera submitted a certified radiological report from Dr. Audrey Eisenstadt, M.D., with respect to plaintiff's right knee, wherein Dr. Eisenstadt opined that MRI images of plaintiff's right knee shows "extensive degenerative changes involving the lateral greater than medial femoral condyle with osteophyte formation and articular cartilage thinning" (id., exhibit O). Dr. Eisenstadt concluded that MRI images of plaintiff's left shoulder revealed "impingement due to degenerative changes of the acromioclavicular joint . . ." (id.). Thus, the Court finds that Gurrera submitted competent medical evidence in admissible form to meet his initial burden of showing that plaintiff's injury to his left shoulder and right knee did not meet the threshold of the serious injury under Insurance Law § 5102(d).

In opposition, plaintiff argues that Gurrera's motion should be denied since Gurrera's own medical experts found that plaintiff sustained a fracture. However, plaintiff is incorrect as Dr. Eisenstadt concluded that "no fracture is seen or noted" in plaintiff's right knee and left shoulder MRIs (see id.). Plaintiff further argues that plaintiff's motion for summary judgment is untimely as same was filed 60 days post Note of Issue. However, the Court notes that both Gurrera and the Fleishman defendants filed separate applications before this Court, prior to the expiration of the 60 day post Note of Issue deadline, to extend the time for which to file their summary judgment motions (motions sequence numbers 6 and 7). Pending the Court's determination of said motions, Gurrera filed the herein summary judgment motion. Thus, the Court, in exercising its discretion, rejects plaintiff's argument and finds that Gurrera's summary judgment motion is timely before the Court.

Plaintiff also submits, inter alia, a Physician's Affirmation from Dr. Mark S. McMahon. Dr. McMahon stated that he used an objective test to measure range of motion in plaintiff's left shoulder which revealed significant limitation to range of motion in the left shoulder [i.e. — flexion: 150 degrees/180 degrees normal; extension: 40 degrees/ 60 degrees normal; abduction: 150 degrees /180 degrees normal] (see Aff in Opp, Dr. McMahon Aff, ¶ 8). Dr. McMahon further concluded that the same objective test revealed range of motion limitation to plaintiff's right knee [i.e. — flexion: 120 degrees/135 degrees normal] (see id.). Dr. McMahon opined that these limitations are permanent and are the result of plaintiff's accident (id. at 9).

However, the Court finds that Dr. McMahon's report fails to raise a triable issue of fact as both Dr. McMahon and plaintiff failed to provide an explanation for the gap in plaintiff's treatment. It is axiomatic that "[w]hile a cessation of treatment is not dispositive, [and] the law surely does not require a record of needless treatment in order to survive summary judgment, a plaintiff who terminates therapeutic measures following the accident, while claiming serious injury, must offer some reasonable explanation for having done so" (Pommells v Perez, 4 NY3d 566 [2005]). Accordingly, where a plaintiff and his or her doctor do not provide any explanation as to why plaintiff failed to pursue treatment, a defendant's motion for summary dismissal of the complaint will be granted (see e.g. Ferraro v Ridge Car Services, 49 AD3d 498 [2d Dept 2008] [summary judgment granted where plaintiff failed to explain 22 months gap in treatment]; Wright v Rodriguez, 49 AD3d 532 [2d Dept 2008] [summary judgment granted where plaintiff failed to explain 16 months gap in treatment]; Otero v 971 Only U, 36 AD3d 430 [2d Dept 2007] [*5][summary judgment granted where plaintiff failed to explain a gap in treatment of more than one year]; Milazzo v Gesner, 33 AD3d 317 [1st Dept 2006] [summary judgment granted for unexplained gap in treatment of three years]). Here, neither plaintiff nor his treating or examining physician offered an explanation for the almost eight year gap in treatment. Given plaintiff's failure to explain such gap, the Court finds that plaintiff's Complaint against Gurrera must be dismissed.

To the extent that plaintiff's Complaint is dismissed against Gurrera, the Court denies Gurrera's motion to, inter alia, strike plaintiff's Note of Issue (motion sequence 6) as moot, and dismiss Gurrera's third-party action as against the Fleishman defendants for contribution for damages awarded to plaintiff as a result of the accident. As the third-party Complaint is now dismissed against the Fleishman defendants, the Court finds that the Fleishman defendants' motion to, inter alia, strike plaintiff's Note of Issue (motion sequence 7), is denied as moot.

CONCLUSION

Accordingly it is hereby,

ORDERED that the motion by the Fleishman defendants for summary judgment on the issue of liability (MS 5) is denied; and it is further,

ORDERED that the portion of Gurrera's motion for summary judgment on the issue of liability against plaintiff and the Fleishman defendants is also denied (MS 8); and it is further,

ORDERED that the portion of Gurrera's motion to dismiss plaintiff's Complaint on the issue of serious injury is granted in its entirety and plaintiff's Complaint as asserted against Gurrera is hereby dismissed; and it is further,

ORDERED that to the extent that plaintiff's Complaint against Gurrera is dismissed, Gurrera's third-party action against the Fleishman defendants for contribution is also dismissed by operation of law; and it is further,

ORDERED that both Gurrera's and the Fleishman defendants' motions to, inter alia, strike plaintiff's Note of Issue and extend time to file their summary judgment motions (MS 6 and 8) are denied as moot; and it is further,

ORDERED that counsel for defendant Gurrera is directed to serve a copy of this Order with Notice of Entry upon the plaintiff and the County Clerk who shall enter judgment accordingly.

This constitutes the Decision and Order of the Court.

Dated: April 24, 2018

PAUL WOOTENJ.S.C. Footnotes

Footnote 1:While the Fleishman defendants' Notice of Motion seeks relief under CPLR 3212, their attorney's Affirmation in Support of their motion aver that they are seeking summary judgment, pursuant to both CPLR § 3211(a)(7), and 3212. Pursuant to this Court's, Part 97, written rules, if there is a discrepancy between the relief sought in a Notice of Motion and the relief sought in the supporting motion papers, the Notice of Motion is controlling. Therefore, the Court will not consider any arguments made by the Fleishman defendants under CPLR 3211(a)(7).

Footnote 2:Although the MV-104 report itself is inadmissible, the Court finds that the portion of the uncertified police accident report which contained plaintiff's and Gurrera's statements about how the accident occurred are admissible as an exception to the hearsay rules as a party admission (see Ganchrow v Kremer, 157 AD3d 771, 773 [2d Dept 2018]; Lezcano-Correa, 145 AD3d at 766; Gezelter v Pecora, 129 AD3d 1021, 1022 [2d Dept 2015]).