Lorenzo v Fine

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Lorenzo v Fine 2019 NY Slip Op 34639(U) December 18, 2019 Supreme Court, Westchester County Docket Number: Index No. 57395/2018 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 12/19/2019 09:05 AM NYSCEF DOC. NO. 54 INDEX NO. 57395/2018 RECEIVED NYSCEF: 12/18/2019 To commence commence the the statutory statutory time time period for appeals of right period for appeals as of right (CPLR 5513 [a]), you are advised advised to serve this order, with serve a copy copy of of this order, with notice notice of of entry, entry, upon upon all parties. parties. SUPREME COURT OF THE STATE OF NEW YORK SUPREME YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER PRESENT: HON. WilLIAM PRESENT: WILLIAM J. GIACOMO, GIACOMO, J.S.C. J.S.C. - - ---- - --- - - ---- --- - - - - -- - -- - -- - --- - - --- - - --- - - - -- - -- - --- - - ---x - - - X -SILVANa B. LUISA SILVANO LORENZO and ANTHONY ANTHONY B. LORENZO, Plaintiffs, Index No. 57395/2018 57395/2018 Sequence No.11 & 2 Sequence No. - againstagainstDECISION & ORDER DECISION TAMMY SUE FINE, TAMMY Defendant. - - - - -- -- -- - - - -- -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xX In an action to recover damages for personal injuries (1) the plaintiffs move for partial summary judgment on the issues of liability (motion sequence #1 ); and (2) the summary judgment sequence #1); defendant moves for summary summary judgment complaint on the grounds defendant judgment dismissing the complaint grounds that the plaintiff did not sustain a serious injury pursuant pursuant to Insurance Law 5102 (motion sequence sequence #2): Papers Papers Considered Considered 1. Notice of Motion/Affirmation Motion/Affirmation of Angela Marcone Morcone Giannini, Esq./ Esq.l 1. Exhibits 1-8; 2. Affirmation Affirmation of Tulia Garavito, Esq. Esq. in Opposition; 3. Reply Affirmation Affirmation of Angela Marcone Morcone Giannini, Esq. 3. 4. Notice of Motion/Affirmation Motion/Affirmation of Tulia Garavito, Esq./Exhibits Esq.lExhibits A-F; 5. Affirmation of Angela Morcone Giannini, in 5. Affirmation Marcone Esq. in Opposition/Affidavit Opposition/Affidavit of Sherry K. K. Solomon, M.D./Exhibits MD.lExhibits 19/Supplemental Affirmation of Sherry K. 9/Supplemental Affirmation K. Solomon, M.D.; MD.; Esq. 6. Reply Affirmation Affirmation of Tulia Garavito, Esq. Factual and Procedural Procedural Background Background Factual Plaintiffs commenced commenced this action for personal injuries sustained sustained as a result of a accident that occurred on November November 1, 1, 2016, on the northbound northbound Bronx motor vehicle accident Plaintiff struck the right side of her head River Parkway at the intersection with Route 22. Plaintiff and sustained a laceration to the right upper eyelid. She was taken to White Plains underwent a surgical repair of her lid lid laceration. Plaintiff Plaintiff was diagnosed diagnosed with hospital and underwent benign vitreous floaters with flashing light symptoms. [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 12/19/2019 09:05 AM NYSCEF DOC. NO. 54 INDEX NO. 57395/2018 RECEIVED NYSCEF: 12/18/2019 Lorenzo v. Fine, Index Index No. 57395/2018 Lorenzo 57395/2018 Plaintiffs Plaintiff's Motion Motion for for Partial Partial Summary Summary Judgment Judgment on the Issue Issue of of Liability Liability Plaintiff Silvano Lorenzo testified at a deposition deposition that that the accident occurred Plaintiff Luisa Silvana Lorenzo testified accident occurred approximately 8:30 a.m. where Bronx River River meets meets Route Route 22. She was stopped stopped at at approximately where the Bronx stop sign waiting merge onto Route 22. Traffic conditions were light and the a stop waiting for for a left merge Traffic conditions were light weather lanes on Route Route 22 going going north. north. She moved moved weather was was clear. There There were were two lanes approximately 15 feet looked to the left because because the great from the approximately feet and looked the visibility visibility was was not great stop sign. After noticed a car fast approaching on stop After traveling traveling 15 feet feet at 2, 3 or 4 mph, she noticed fast approaching Route 22 and she slowly stopped her vehicle. heard screeching Route slowly stopped vehicle. She She heard screeching and a slam slam and her vehicle was hit from behind. vehicle was from behind. The testified at a deposition deposition that that she was traveling traveling on The defendant defendant Tammy Tammy Sue Fine testified Bronx River River Parkway Parkway north north and struck struck plaintiff's plaintiff's vehicle Plaintiff's vehicle vehicle the Bronx vehicle in the rear. Plaintiff's passing on Route Route 22 with was in front front of her vehicle vehicle at a stop sign. She observed observed the the cars cars passing Plaintiff's car car pull forward slow rate to feed the right of way. Plaintiff's forward at a slow feed into the right lane of Route vehicle up to the stop stop sign and stopped. Route 22. Defendant Defendant pulled pulled her vehicle stopped. Defendant Defendant observed a vehicle vehicle in the left lane of Route 22 that quickly moved moved to the right lane observed that quickly preventing plaintiffs plaintiff's vehicle merging. Plaintiffs Plaintiff's vehicle moving very preventing vehicle from from merging. vehicle was was moving very slow. Defendant had proceeded proceeded past the stop sign about about a half half a car car length length from plaintiff's Defendant from plaintiff's vehicle. Plaintiffs Plaintiff's vehicle came to a stop and defendant's vehicle. vehicle came defendant's vehicle vehicle was was less than than six feet feet behind that point. Defendant testified, ".since ".since I had started feed too by moving behind at that Defendant testified, started to feed moving up the [plaintiff's vehicle]". road, I hit [plaintiff's vehicle)". Plaintiffs move move for issues of liability. liability. Plaintiffs Plaintiffs argue argue that Plaintiffs for summary summary judgment judgment on the issues defendant Traffic Law 1129 by striking vehicle in the rear. defendant violated violated Vehicle Vehicle and Traffic striking plaintiffs' plaintiffs' vehicle opposition, defendant defendant argues non-negligent explanation explanation as to the In opposition, argues that that there there is a non-negligent happening denial of plaintiffs' that the happening of the accident accident requiring requiring denial plaintiffs' motion. motion. Defendant Defendant argues argues that accident was caused by the driver driver of an unidentified unidentified vehicle Route 22 abruptly abruptly entering entering accident was caused vehicle on Route Defendant argues argues that unidentified vehicle executed an unsafe unsafe lane the right lane. Defendant that the unidentified vehicle executed change and defendant defendant was unable to avoid striking plaintiffs' plaintiffs' vehicle. change was unable avoid striking vehicle. Serious Injury Injury Serious Defendant moves moves for summary judgment complaint on the grounds Defendant for summary judgment dismissing dismissing the complaint grounds that the plaintiff plaintiff Luisa Luisa Silvano Silvano Lorenzo Lorenzo did not sustain serious injury. injury. that sustain a serious Defendant submits submits the affirmed affirmed IME report report of ophthalmologist ophthalmologist Neil Katz, M.D. Defendant Upon Or. Dr. Katz' examination, examination, on May 17, 2019, plaintiff complained lights and Upon 2019, plaintiff complained of flashing flashing lights floaters in the right eye as a result result of the accident. accident. Dr. Katz averred averred that floaters _right eye that there there were were no significant objective objective findings findings to correlate correlate with persistent complaint complaint except except for for benign benign significant with the the persistent ageing changes changes of the vitreous vitreous gel in both eyes. There There is no evidence evidence of any any significant significant ageing retinal pathology pathology and plaintiff's plaintiff's vision eyes. Plaintiff Plaintiff did sustain sustain retinal vision was 20/20 20/20 in both eyes. contusions to her face bruising and an eyelid eyelid laceration laceration which required surgical surgical repair repair contusions face with bruising which required which have have healed healed well over time prognosis is excellent. excellent. Dr. Katz Katz averred averred that which well over time and her prognosis that plaintiff's symptoms symptoms of flashes flashes and floaters floaters should should gradually gradually fade over time time and she did plaintiff's fade over 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 12/19/2019 09:05 AM NYSCEF DOC. NO. 54 INDEX NO. 57395/2018 RECEIVED NYSCEF: 12/18/2019 Lorenzo 57395/2018 Lorenzo v. Fine, Index Index No. 57395/2018 any special monitoring. Dr. Katz concluded eyes not need any special ophthalmological ophthalmological monitoring. concluded that that plaintiffs plaintiff's eyes healthy and normal normal and any any persistent persistent floaters flashing light are most are healthy floaters and flashing most likely likely not related to the accident. Thus, Thus, defendant defendant demonstrated demonstrated that injury to plaintiff's plaintiff's eye related the accident. that the injury eye did constitute a serious serious injury injury within meaning of of Insurance Insurance Law 5102(d) not constitute within the meaning 5102(d) (see (see Moran Moran v Kollar, 96 AD3d AD3d 811 [2d Dept Dept 2012]). 2012]). fact exist whether Silvano In opposition, that issues opposition, plaintiffs plaintiffs argue argue that issues of offacl exist as to whether Silvano Lorenzo Lorenzo sustained significant limitation sustained a permanent permanent consequential consequential limitation limitation of of use as well as a significant limitation her right eye eye as a result result of the automobile automobile accident. accident. of use of her Plaintiffs submit submit an affirmation affirmation of Sherry Sherry K. Solomon, Solomon, M.D., board certified in the board certified Plaintiffs field of Ophthalmology. Ophthalmology. Dr. Solomon Solomon examined examined plaintiff plaintiff the day day after after the the accident accident and concluded that that plaintiff plaintiff sustained sustained a large vitreous detachment of the right right eye without without any concluded vitreous detachment evidence again on December evidence of a retinal retinal hole hole or tear. Dr. Solomon Solomon examined examined plaintiff plaintiff again December 7, 2016, August 26, 2019. 2016, January January 9, 2017, 2017, July July 2, 2018, and August 2019. During During each each exam exam Dr. Solomon flashing Solomon observed observed vitreous vitreous detachment detachment and plaintiff plaintiff had continued continued complaints complaints of of flashing light. According there According to Dr. Solomon, Solomon, vitreous vitreous detachment detachment is a permanent permanent condition condition and there is no medication surface of the vitreous medication or procedure procedure to restore restore the surface vitreous once once it has detached. detached. Patients with vitreous detachment require require ophthalmological ophthalmological monitoring examine the monitoring to examine Patients vitreous detachment retina for any damage. damage. Dr. Solomon Solomon opines opines that plaintiff sustained retina for any that plaintiff sustained a permanent permanent consequential limitation limitation of of use as well as a significant significant limitation limitation of use of her her right eye as consequential result of the automobile automobile accident. accident. a result Discussion Discussion prevail on a motion motion for summary summary judgment issue of liability, liability, a plaintiff plaintiff To prevail judgment on the issue must establish, establish, prima prima facie, that opposing party party was was negligent negligent (Phillip (Phillip v 0 0 Carling Carting must that the opposing D&D Dept 2015]). rear-end collision collision with a stopped stopping Co., Inc., 136 AD3d AD3d 18, 22 [2d Dept 2015]). A rear-end stopped or stopping vehicle establishes establishes a prim primaa facie case of negligence negligence on the part part of the operator operator of of the rear vehicle facie case vehicle, thereby requiring that operator to rebut the inference inference of of negligence providing negligence by providing vehicle, thereby requiring that operator nonnegligent explanation explanation for for the collision collision (Theo (Theo v Vasquez, Vasquez, 136 AD3d a nonnegligent AD3d 795, 796 [2d Dept 2016]; Le Grand v Silberstein, 123 AD3d 773, 774 [2d Dept 2014]). Grand Silberstein, AD3d Dept 2014]). Dept 2016]; A nonnegligent non negligent explanation explanation for a rear-end rear-end collision collision may may be a sudden sudden stop of the stop of Grand v Silberstein, Silberstein, 123 AD3d Dept 2014]). However, AD3d 773, 774 [2d Dept 2014]). However, lead vehicle vehicle (see Le Grand "vehicle stops stops which which are foreseeable foreseeable under traffic conditions, conditions, even "vehicle under the prevailing prevailing traffic even if sudden sudden and frequent, follows, since under a frequent, must must be anticipated anticipated by the driver driver who follows, since he or she is under duty safe distance car ahead" ahead" (Shamah duty to maintain maintain a safe distance between between his or her car and the car (Shamah v Richmond County County Ambulance Dept 2001]). Richmond Ambulance Serv., 279 AD2d AD2d 564, 565 [2d Dept 2001]). Plaintiffs demonstrated demonstrated entitlement entitlement to judgment matter of law law by submitting Plaintiffs judgment as a matter submitting evidence establishing establishing that Silvano Lorenzo's Lorenzo's vehicle stopped or slowing slowing down down for was stopped for evidence that Silvano vehicle was traffic when it was struck in the rear by defendant's defendant's vehicle (see Giangrasso Giangrasso v Callahan, Callahan, traffic when was struck vehicle (see AD3d 521 [2d Dept Dept 2011]; Grand v Silberstein, Silberstein, 123 AD3d 773). In opposition, opposition, 87 AD3d 2011]; Le Grand AD3d 773). defendant failed raise a triable issue of of fact. defendant failed to raise triable issue 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 12/19/2019 09:05 AM NYSCEF DOC. NO. 54 INDEX NO. 57395/2018 RECEIVED NYSCEF: 12/18/2019 Lorenzo v. Fine, Index Index No. 57395/2018 57395/2018 Lorenzo motion for summary judgment personal injury injury action action arising arising from motor On a motion for summary judgment in a personal from a motor vehicle accident, accident, the defendants are required required to establish establish that that the plaintiff did not sustain sustain vehicle the defendants the plaintiff serious injury injury within meaning of of Insurance Insurance Law Law 5102(d) 51 02(d) (see (see Toure v Avis Rent A a serious within the the meaning Avis Rent Car Car Sys., 98 NY2d 345 [2002]; [2002]; Gaddy Gaddy v Eyler, 79 NY2d NY2d 955 [1992]; [1992]; Licari Licari v Elliott, 57 [1982]). NY2d 230 [1982]). Insurance Insurance Law 5102(d) 5102(d) defines defines "serious "serious injury" injury" as "a personal personal injury injury which which results results death; dismemberment; dismemberment; significant significant disfigurement; disfigurement; a fracture; fracture; loss of a fetus; permanent in death; fetus; permanent body organ, organ, member, member, function system; permanent permanent consequential consequential loss of use of a body function or system; limitation of use of a body organ or member; significant limitation of use of a body function function of body organ member; significant limitation of of body limitation of system; or a medically medically determined determined injury injury or impairment impairment of of a non-permanent non-permanent nature nature or system; which prevents the injured injured person person from performing performing substantially substantially all of the material material acts which prevents which constitute such person's person's usual usual and customary customary daily daily activities activities for for not less than ninety ninety which constitute days during during the one one hundred hundred eighty eighty days days immediately immediately following occurrence of the days following the the occurrence injury or impairment." injury impairment." Defendant that plaintiff Defendant failed failed to demonstrate, demonstrate, prima prima facie, that plaintiff did not sustain sustain a serious serious injury (see Cubero Cubero v Venditti, _ AD3d AD3d _, 2019 NY App LEXIS 8908 8908 [2d Dept Dept _, 2019 App Div LEXIS injury December 11, 2019]). 2019]). Even if defendant defendant did demonstrate demonstrate entitlement entitlement to summary summary December judgment, the the plaintiffs through their judgment, plaintiffs through their expert expert affidavit affidavit raised an issue issue of of fact fact as to whether whether Silvano Silvano Lorenzo Lorenzo sustained sustained a permanent permanent consequential consequential limitation limitation of of use or a significant significant limitation of use of her right eye as a result result of of the automobile automobile accident. accident. limitation Accordingly, it is Accordingly, ORDERED that that plaintiffs' plaintiffs' motion motion for partial partial summary summary judgment issues of ORDERED judgment on the issues liability is GRANTED GRANTED (motion (motion sequence sequence #1 #1);); and it is further further liability ORDERED that defendant's motion motion for for summary summary judgment dismissing the ORDERED that the the defendant's judgment dismissing the complaint on the grounds grounds that that the plaintiff plaintiff did not sustain sustain a serious serious injury injury pursuant pursuant to complaint Insurance Law 5102 5102 is DENIED DENIED (motion (motion sequence sequence #2). Insurance Counsel for all parties Counsel for parties are directed directed to appear appear in the Settlement Settlement Conference Conference Part, 1600, on January 2020, at 9:15 9:15 a.m. a.m. for further proceedings. proceedings. room 1600, January 28, 2020, for further Dated: Dated: White Plains, New New York York White Plains, December 18, 2019 2019 December LIArv1iGiACOMO,iS. C. ~ S C ~ MASTER LIST H: ALPHABETICAL ALPHABETICAL MASTER LIST - WESTCHESTER/Lorenzo WESTCHESTER/Lorenzo v. Fine Fine 4 [* 4] 4 of 4

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