Chukwu v Viboch

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Chukwu v Viboch 2019 NY Slip Op 34644(U) December 31, 2019 Supreme Court, Westchester County Docket Number: Index No. 58548/2018 Judge: Sam D. Walker 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 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 To commence commence the the statutory statutory time right time for for appeals appeals as of of right (CPLR you are (CPLR 5513[a]), 5513[a]), you advised advised to to serve serve a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all all parties. parties. SUPREME STATE OF NEW YORK SUPREME COURT COURT OF THE THE STATE NEW YORK WESTCHESTER COUNTY WESTCHESTER COUNTY PRESENT: PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. -----------------------------------------------------------------------x ---------------------------------------------------~-------------------x OBIAGELI OBIAGELI CHUKWU, CHUKWU, Plaintiff, Plaintiff, DECISION DECISION & ORDER ORDER Index 58548/2018 Index No. 58548/2018 Seq.# Seq. # 1 & 2 -against-against- PAUL PAUL VIBOCH, VIBOCH, Defendant. Defendant. ------------------------------------------------------------------------x ------------------------------------------------------------------------x // The following papers were were read and considered considered in deciding deciding the present present motions: motions: The following papers Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-G A-G Notice Notice of Motion/Affirmation/Exhibits A-E of Motion/Affirmation/Exhibits A-E Notice Affirmation Opposition/Exhibits 1-3 Affirmation in Opposition/Exhibits 1-9 10-16 10-16 17-20 17-20 Upon the motion is DENIED the foregoing foregoing papers papers it is ordered ordered that that the defendant's defendant's motion DENIED plaintiff's motion motion is GRANTED GRANTED in part and DENIED DENIED in part. and the plaintiff's FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND The action on The plaintiff, plaintiff, Obiageli Obiageli Chukwu Chukwu ("Chukwu/the ("Chukwu/the plaintiff''), plaintiff'), commenced commenced this this action May 30, 2018, 2018, in Westchester Westchester County, County, to recover recover monetary monetary damages damages for for alleged alleged injuries injuries May sustained in a motor motor vehicle vehicle accident accident that that occurred occurred on April 2017, on the Tappan Tappan April 11, 2017, sustained Zee Bridge. Bridge. At the time time of the accident, accident, the plaintiff plaintiff alleges alleges that that she was was operating operating her her Zee vehicle in the right lane lane of a three three lane highway, highway, when when her vehicle vehicle was was hit in the rear rear by vehicle defendant's vehicle. vehicle. The The defendant, defendant, Paul Viboch Viboch ("Viboch/the ("Viboch/the defendant"), defendant"), testified testified the defendant's [* 1] 1 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 that that he was was behind behind a truck truck and changed changed lanes lanes into into the the right right lane lane and immediately immediately saw saw that that there there was was a. a. car car that that appeared appeared stopped stopped and had her· her hazard hazard lights lights flashing. flashing. He jammed on the jammed the brakes, brakes, but could could not stop stop in time. time. The The bill. bill of of particulars particulars alleges alleges acute acute bilateral bilateral back back pain without without sciatica, sciatica, back back pain in mid-thoracic, mid-thoracic, neck neck pain, pain, lower lower back back pain exacerbated exacerbated by sitting sitting extended extended periods periods and right elbow elbow pain, which which are are all permanent. permanent. The The bill of of particulars particulars also also alleges alleges that that the plaintiff plaintiff was was at the the hospital hospital for for approximately approximately one one day, in bed for for approximately approximately three three days and at home home for for approximately approximately three three months. months. days The judgment pursuant The defendant defendant now now files files the the instant instant motion motion for for summary summary judgment pursuant to CPLR CPLR 3212, 3212, seeking seeking dismissal dismissal of of the the action, action, asserting asserting that that the the plaintiff plaintiff did not sustain sustain a serious serious injury injury as defined defined under under New New York York Insurance Insurance Law§§ Law SS 5102(d) 5102(d) and 5104(a). 5104(a). The The plaintiff also also filed filed a motion motion for for summary summary judgment pursuant to CPLR CPLR 3212, 3212, on the the issue issue plaintiff judgment pursuant of liability liability and and dismissal dismissal of of all affirmative affirmative defenses, defenses, an award award of of costs, costs, disbursements disbursements of and reasonable reasonable attorney's attorney's fees fees to abide abide the the motion. motion. The The defendant's defendant's attorney attorney argues argues that that the the plaintiff's plaintiff's medical medical records records document document rio no total total loss of of use of of any any body body organ organ or member; member; that that neither neither the the bill of of particulars particulars nor the the medical medical records records point point to the the existence existence of of any any laceration laceration or scarring; scarring; that that absent absent contemporaneous objective medical medical evidence evidence of of any any injury injury of of significance significance or contemporaneous objective consequence, consequence, absent absent contemporaneous contemporaneous objective objective medical medical evidence evidence causally causally relating relating the symptoms symptoms to the the accident, accident, absent absent objective objective medical medical evidence evidence of of anything anything more more serious than than a sprain. sprain or contusion, contusion, and absent absent any any treatment treatment for for more more than than five five years, years, serious the claim claim for for permanent permanent consequential consequential limitation limitation of of use/significant use/significant limitation limitation of of use, must must the be dismissed; dismissed; and that that given given the the admissions admissions in the the bill of of particulars particulars respecting respecting the [* 2] 2 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 length length of confinement confinement and the limited limited time time out out of work, work, along along with with the plaintiff's plaintiff's own testimony, testimony, the absence absence of any contemporaneous contemporaneous medical medical opinion opinion respecting respecting a causally causally related related disability, disability, and the absence absence of any documented documented treatment treatment more more than than 90 days days , after after the accident, accident, the claim claim for for 90/180 90/180 day day disability disability must must be dismissed. dismissed. Discussion Discussion "[T]he "[T]he proponent proponent of a summary summary judgment judgment motion motion must must make make a prima prima facie facie showing of of entitlement entitlement to judgment matter of law, tendering tendering sufficient sufficient evidence evidence to judgment as a matter showing demonstrate demonstrate the the absence absence of any material material issues issues of fact" fact" (see Alvarez Prospect Hosp., Hosp., Alvarez v Prospect 68 NY2d 320, 324 [1986]). [1986]). The The failure failure to make make such such a prima prima facie facie showing showing requires requires the denial denial of the motion motion regardless regardless of the sufficiency sufficiency of the the opposing opposing papers, papers, (see Winegrad Winegrad v New New York Univ. Med. Ctr., 64 NY2d 851 [1985]). [1985]). "Once "Once this this showing showing has been been made, made, however, however, the burden burden shifts shifts to the party party opposing judgment to produce opposing the motion motion for for summary summary judgment produce evidentiary evidentiary proof proof in admissible admissible form form sufficient sufficient to establish establish the existence existence of material material issues issues of of fact fact which which require require a trial of action" (see Alvarez Prospect Hosp., Hosp., 68 NY2d at 324, citing citing to Zuckerman Zuckerman v City City the action" Alvarez v Prospect of New New York, 49 NY2d NY2d at 562). The The non-moving non-moving party party must must lay bare bare all of the the facts facts at its of disposal regarding regarding the issues issues raised raised in the motion motion (see Mgrditchian Mgrditchian v Donato Donato, , 141' 141' disposal AD2d Dept 1988]). 1988]). AD2d 513 [2d Dept Serious Serious Injury Injury Insurance Law §5104(a) 951 04(a) provides provides in pertinent pertinent part that: that: Insurance Notwithstanding any other other law, in any action action by or on Notwithstanding behalf of of a covered covered person person against against another another covered covered person person behalf for personal personal injuries injuries arising arising out out of negligence negligence in the the use of of for operation of a motor motor vehicle vehicle in this this state, state, there there shall shall ·be be no operation [* 3] 3 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 right right to recovery recovery for for non-economic non-economic loss, except except in the the case case of of a serious .... (McKinney's serious injury, injury, or for for basic basic economic economic loss 10ss....(McKinney's Insurance Law Law §5104[a]) 951 04[a]) Insurance Insurance Insurance Law Law §5102(d) 951 02(d) defines defines "serious "serious injury" injury" as a personal personal injury injury which which results results in death; death; dismemberment; dismemberment; significant a fracture; significant disfigurement; disfigurement; fracture; loss loss of of a fetus; fetus; permanent permanent loss of of use of of a body body organ, organ, member, member, function function or system; system; permanent permanent consequential consequential limitation limitation of of use use of of a body body organ organ or member; member; significant significant limitation limitation of of use use of of a body body function function or system; system; or a medically medically determined determined injury injury or impairment impairment of of a non-permanent non-permanent nature nature which which prevents prevents the the injured person person from from performing performing substantially substantially all of of the the injured material material acts acts which which constitute constitute such such person's person's usual usual and and customary customary daily daily activities activities for for not not less than than ninety ninety days days during during the one one hundred hundred eighty eighty days days immediately immediately following following the the the of (McKinney's occurrence occurrence of the the injury injury or impairment. impairment. (McKinney's Insurance Insurance Law Law §5102[d]) 951 02[d]) "The "The determination determination of of whether whether [a] plaintiff plaintiff sustained sustained a serious serious injury injury within within the meaning of the the statute statute is, as a rule, a question question for for the the jury." N.Y.Prac., New New York York meaning jury." (31 N.Y.Prac., Avis Rent Insurance Law§ Law 9 32:32 32:32 [2015-2016 [2015-2016 ed.]; see see also, Toure v Avis Rent A Car Car Systems, Systems, Insurance NY2d 345 [20021). [2002]). "[O]n "[O]n a motion motion for for summary summary judgment the defendant defendant has has the Inc., 98 NY2d judgment the burden burden to show show that that the the plaintiff plaintiff has not not sustained sustained a serious serious injury injury as a matter matter of of law" (Id.). (Id.). The The degree degree or seriousness seriousness of of an injury injury may may be shown shown in one one of of two two ways: ways: either either by an expert's expert's designation designation of of a numeric numeric percentage percentage of of a plaintiff's plaintiff's loss of of range range of of motion motion or by an expert's expert's qualitative qualitative assessment assessment of of a plaintiff's plaintiff's condition condition provided provided that that the evaluation evaluation has has an objective objective basis basis and compares compares the the plaintiff's plaintiff's limitations limitations to the the the normal function, function, purpose purpose and use of the the affected affected body body organ, organ, member, member, function function or normal 4 [* 4] 4 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 system (see Toure v Avis Avis Rent Rent A Car system Car Sys., 98 NY2d NY2d 345, 357 [2002]). A defendant 357 [2002]). defendant can establish establish that that a plaintiff's plaintiffs injuries injuries are not serious within the meaning of New New York serious within the meaning York State the submission State Insurance Insurance Law Law § S 5102(d), 5102(d), by the submission of of an affirmed affirmed medical medical report report from from a medical who has examined medical expert expert who examined the plaintiff plaintiff and has has determined determined that that there there are no objective support the objective medical medical findings findings to support the plaintiff's plaintiff's alleged alleged claim claim (see Rodriguez Rodriguez v Huerfano, AD3d Huerfano, 46 AD 3d 794 [2d Dept Dept 2007]). 2007]). In this case, case, Chukwu Chukwu did not suffer suffer death, death, dismemberment dismemberment, , significant significant disfigurement, fracture, or loss of fetus. Therefore, disfigurement, fracture, of a fetus. Therefore, those categories of of the Insurance Insurance those categories Law§ Law S 5102(d) 5102(d) can be eliminated. eliminated. Chukwu Chukwu alleges alleges that she sustained sustained permanent permanent loss of that she use of function or system; of a body body organ, organ, member, member, function system; a permanent permanent consequential consequential limitation limitation of of use of a body body organ organ or member; member; significant significant limitation limitation of of use use of a body body function function or system or a medically system medically determined determined injury injury or impairment impairment of non-permanent nature nature which of a non-permanent which prevented prevented her from from performing performing substantially substantially all of of the material material acts acts which which constitute constitute her usual for not less than usual and customary customary daily daily activities activities for ninety days days during during the the orie one than ninety hundred eighty days days immediately following the hundred eighty immediately following injury or impairment. impairment. the occurrence occurrence of of the the injury Viboch argues that Chukwu Viboch argues that Chukwu did not sustain sustain any injuries injuries corresponding corresponding to those those categories; categories; that that herniations, herniations, and sprains sprains and strains strains are are not serious injuries that serious injuries that objective, contemporaneou objective, contemporaneous,s, and recent recent medical medical evidence required; and that evidence is required; that· a permanent permanent loss of of use claim claim requires requires a total of use. total loss of Ronald Ronald L. Mann, Mann, M.D. conducted conducted an independent independent orthopedic orthopedic medical medical examination of of the the plaintiff examination plaintiff on February February 4, 2019. Using observation 2019. Using observation and and a goniometer, goniometer, Dr. Mann Mann reported reported normal normal ranges ranges of of motion motion in the the cervical cervical and lumbar spine spine and and lumbar 5 [* 5] 5 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 reported resolved. Dr. Mann were resolved. diagnosed that that her her cervical cervical and lumbar sprain/strain were Mann reported lumbar sprain/strain diagnosed of activities of able to do activities that plaintiff has no disability related to the accident and is able the accident disability related the plaintiff that the daily living and self-care self-care without restriction. without restriction. daily this plaintiff, this the plaintiff, favorable to the most favorable Upon review review and viewing light most the light facts in the the facts viewing the Upon entitlement to of entitlement showing of facie showing Court finds make a prima prima facie failed to make defendant has failed the defendant that the finds that Court judgment matter of of law with respect to the plaintiff suffering suffering a permanent permanent loss· loss of of the plaintiff with respect judgment as a matter of limitation of consequential limitation permanent consequential use of system; permanent function or system; member, function organ, member, body organ, of a body function or of a body of use of body organ member; significant limitation of body function significant limitation organ or member; of a body use of nature of a non-permanent system; or a medically medically determined determined injury impairment of non-permanent nature injury or impairment system; acts the material of the substantially all of which prevents the injured person person from performing substantially material acts from performing the injured which prevents thari for not daily activities which constitute such person's usual usual and customary customary daily activities for not less less. than such person's which constitute occurrence 6f following the days immediately ninety days days during during the one hundred eighty immediately following the occurrence tif eighty days one hundred ninety the injury or impairment. impairment. the injury the revealed the deficiencies and revealed The plaintiff's IME showed range of motion deficiencies of motion showed no range The plaintiff's were injuries were stated that but stated resolved, but cervical, lumbar lumbar sprains/strains sprains/strains to be all resolved, that the the injuries cervical, shows contemporaneous medical causally related to the medical records records shows The contemporaneous accident. The the accident. causally related did not the defendant and the plaintiff and deficiencies in the range of of motion performed on the defendant die the plaintiff motion performed the range deficiencies after years after two years over two was performed discuss those those contemporaneou contemporaneous s findings. findings. The performed over The IME was discuss the occurred. accident occurred. the accident from performing her from prevented her With regard to any any alleged injuries that that prevented performing alleged injuries With regard daily usual and customary constituted her substantially all of of the material material acts acts which her usual customary daily which constituted substantially ' .• days immediately eighty days one hundred the one activities ninety days hundred eighty immediately during the days during than ninety for not less than activities for 6 [* 6] 6 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 following her her alleged alleged injury, injury, the the bill of of particulars, particulars, states states that that the the plaintiff plaintiff was was confined confined following . .. . . two home from from work_ work. for for three three months, months, although, although, the the plaintiff plaintiff testified testified to missing missing work work for for two home months and the the doctor's doctor's note note covered covered a sixty-four sixty-four day day period. period. However, However, the the plaintiff plaintiff had months limitations upon upon returning returning to work work and and testified testified that that she she could could not not perform perform all of of her her limitations duties at work work because because of of the the accident accident and could could not not work work as much much overtime overtime as a duties . . result. Since Since the the defendant defendant has failed failed to make make a prima prima facie facie showing, showing, the the Court Court need need result. address the the sufficiency sufficiency of of the the plaintiff's plaintiff's opposition. opposition. not address Liabiility Liabiility With regard regard to the the issue issue of of liability, liability, the the plaintiff plaintiff has has made made out out a prima prima facie facie With showing of of her entitlement entitlement to summary summary judgment, thereby shifting shifting the the burden burden to the the judgment, thereby showing defendant defendant to demonstrate demonstrate the the existence existence of of a factual factual issue issue requiring requiring a trial trial ·'(see '(see Macauley v Elrac, Inc., Macauley AD3d 584, 585 [2d 6 AD3d Dept 2004]) 2004]) [Rear-end [Rear-end collision collisioriis is Dept sufficient to create create a prima prima facie facie case case of of liability.] liability.] If the the operator operator of of the the striking striking vehicle vehicle sufficient fails to rebut rebut this this presumption presumption and the the inference inference of of negligence, negligence, the the operator operator of of the the fails stopped vehicle vehicle is entitled entitled to summary summary judgment the issue issue of of liability liability (seeLeonard (see Leonard v stopped judgment on the City of of New New York. 273 273 AD2d AD2d 205 205 [2d Dept Dept 2000]; 2000]; Longhito Longhito v Klein. 273 273 AD2d AD2d 281 [2d City Dept 2000]; 2000]; Velasquez Velasquez v Quijada. Quijada. 269 269 AD2d AD2d 592 [2d Dept Dept 2000]; 2000]; Brant Brant v Senatobia Senatobia Dept Operating Corp., 269AD2d 269AD2d 483 483 [2d Dept Dept 2000]). 2000]). Operating New New York York Vehicle Vehicle and Traffic Traffic Law§ Law S 1129 1129 states states in pertinent pertinent part part that: that: The driver driver of a motor motor vehicle more closely' The vehicle shall shall not follow follow another another vehicle vehicle more closely than is reasonable reasonable and prudent, prudent, having having due regard for than due regard for the the speed speed of such.' such vehicles and the traffic traffic upon upon and the condition highway. NY VTL § vehicles condition of the the highway. VTL S 1129 (a) 1129 7 [* 7] 7 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 In (Leal Second Department (Leal v Wolff), the Second Department held that that "[s]ince "[s]ince the defendant defendant was under a duty duty to maintain maintain a safe safe distance between his car and [the plaintiff's] plaintiff's] car (see under distance between Vehicle and Traffic Traffic Law Section Section 1129[a]), 1129[a]), ·his his failure failure to do absence of a non Vehicle do so in absence negligent explanation explanation constituted constituted negligence negligence as a matter matter of of law" negligent (Leal v Wolf Wolf 224 (Leal AD2d 392 [2d Dept Dept 1996]). 1996]). AD2d Further, "[w]hen "[w]hen the driver driver of an automobile automobile approaches approaches from from the rear, he or she Further, bound to maintain maintain a reasonably reasonably safe safe rate of speed speed and control control over over his or her vehicle, vehicle, is bound exercise reasonable reasonable care care to avoid avoid colliding colliding with the the other other vehicle" vehicle" (see Zweeres Zweeres and to exercise Materi, 94 AD3d AD 3d 1111 [2d Dept Dept 2012]). "Drivers have have a duty duty to see what what should should be 2012]). "Drivers v Materi, exercise reasonable reasonable care care under under the the circumstances circumstances to avoid avoid an accident" seen and to exercise accident" (Id.). (Id.). defendant did not oppose motion and therefore, therefore, failed offer any Here, the defendant oppose the motion failed to offer non-negligent explanation explanation for for the accident, accident, thereby creating any any issues issues of fact fact with non-negligent thereby not creating liability. The The fact fact that the defendant defendant rear rear ended ended the plaintiff's vehicle, regard to liability. that the the plaintiff's vehicle, demonstrates that that he was was following following too closely. closely. demonstrates The Court Court also also grants grants dismissal dismissal of the defendant's defendant's first first affirmative affirmative defense, defense, but The denies dismissal dismissal of the defendant's second second and third third affirmative affirmative defenses defenses and denies denies denies the defendant's request for for costs costs and attorney's attorney's fees fees for for the filing motion .. .. the request filing of the motion Accordingly, based based upon upon the foregoing, Accordingly, foregoing, it is ORDERED that that the the defendant's defendant's motion motion for for summary summary judgment DENIED and it ORDERED judgment is DENIED further is further ORDERED that that the the plaintiff's plaintiff's motion motion for for summary summary judgment the issue issue of of ORDERED judgment on the 8 [* 8] 8 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 02:23 PM NYSCEF DOC. NO. 40 INDEX NO. 58548/2018 RECEIVED NYSCEF: 01/07/2020 liability is GRANTED. GRANTED. liability The parties parties are directed directed to appear appear before before the the Settlement Settlement Conference Conference Part in The Courtroom 1600 1600 on February February 18, 2020 2020 at 9:15 9:15 a.m. Courtroom The foregoing foregoing shall shall constitute constitute the Decision Decision and Order Order of the the Court. Court. The Dated: White White Plains, Plains, New New York Dated: York December 31,2019 31,2019 December S2Q.~ ~£?~ WALKER, J.S.C. J.S.C. . HON. SAM D. WALKER, 9 [* 9] 9 of 9

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