Dunn-Cantatore v Avalos

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Dunn-Cantatore v Avalos 2019 NY Slip Op 34660(U) December 31, 2019 Supreme Court, Westchester County Docket Number: Index No. 62517/2018 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 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 To commence commence the the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a]), you (CPLR 5513[a]), you are advised advised to to serve serve a copy copy of of this this order, order, with with notice notice of entry, upon of entry, upon all parties. parties. SUPREME STATE OF NEW SUPREME COURT COURT OF THE THE STATE NEW YORK YORK WESTCHESTER COUNTY COUNTY WESTCHESTER PRESENT: WALKER, J.S.C. J.S.C. PRESENT: HON. HON. SAM D. WALKER, -----------------------------------------------------------------------x -----------------------------------------------------------------------x SHARON SHARON M. DUNN-CANTATORE, DUNN-CANTATORE, Plaintiff, Plaintiff, DECISION ORDER DECISION & & ORDER Index Index No. 62517/2018 62517/2018 Seq.# Seq. #1&2 -against-against- ROBERTO A. M. AVALOS AVALOS a/k/a a/k/a R. A. ROBERTO MARROQUINAVALOS, MARROQUINAVALOS, Defendant. Defendant. ------------------------------------------------------------------------x ------------------------------------------------------------------------x The The following following papers papers were were read and considered considered in deciding deciding the present present motions: motions: Notice A-G Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-G Notice 1-9 Notice of Cross-Motion/Affirmation/Exhibits Cross-Motion/Affirmation/Exhibits Affirmation Affirmation in Opposition/Exhibit Opposition/Exhibit A 1-9 10-20 10-20 21-22 21-22 Upon the foregoing foregoing papers papers it is ordered ordered that that the motion motion is GRANTED. GRANTED. FACTUALANDPROCEDURALBACKGROUND FACTUAL AND PROCEDURAL BACKGROUND The August 13, The plaintiff, plaintiff, Sharon Sharon M. Dunn-Cantatore, Dunn-Cantatore, commenced commenced this this action action on August Westchester County, 2018, 2018, in Westchester County, to recover recover monetary monetary damages damages for for alleged alleged injuries injuries sustained in a motor motor vehicle accident that that occurred occurred on January January 17, 2013, 2013, on Saw Saw Mill sustained vehicle accident River River Road, at or near near the intersection intersection of Donald Donald Drive, in the Village Village of Hastings-onHastings-onHudson Hudson in the the County County of Westchester. Westchester. The plaintiff plaintiff alleges alleges that that the the defendant defendant was was traveling traveling northbound northbound on Saw Saw Mill The River Road, Road, when when his vehicle, vehicle, without without warning, warning, swerved swerved into into the the opposite opposite southbound southbound River lane and struck struck the the plaintiff's plaintiff's vehicle vehicle head-on. head-on. lane The bill of of particulars particulars alleges alleges Cervical Cervical spine spine disc disc herniation, herniation, significant significant stenosis, stenosis, The [* 1] 1 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 impingement, impingement, straightening straightening of of cervical cervical lordosis; lordosis; Lumbar Lumbar spine spine disc disc and impingeme·nt; impingement; metacarpal of of right right hand; hand; Thoracic spine spine disc disc bulge bulge with with impingement; impingement; fracture fracture of of 5thth metacarpal Thoracic nervousness, anxiety anxiety and PTSD. PTSD. and nervousness, The defendant defendant now now files files the the instant instant motion motion for for summary summary judgment pursuant t6 to The judgment pursuant· CPLR 3212, 3212, seeking seeking dismissal dismissal of of the the action, action, asserting asserting that that the the plaintiff plaintiff did not not sustain sustain a CPLR serious serious injury injury as defined defined under under New New York York Insurance Insurance Law Law §§ SS 5102(d) 5102(d) and and 5t04(a). 5104(a). The The plaintiff also also filed filed a cross-motion cross-motion for for summary summary judgment pursuant to CPLR CPLR 3212, 3212, on the plaintiff judgment pursuant issue of of liability liability and that that plaintiff plaintiff has sustained sustained a serious serious injury, injury, dismissal dismissal of of the the issue defendant's affirmative affirmative defense defense of com.parative comparative negligence negligence and an order order denying denying the the defendant's defendant's defendant's threshold threshold motion motion pursuant pursuant to Insurance Insurance law§ law S 5102(d). 51 02(d). Discussion Discussion "[T]he proponent proponent of of a summary summary judgment motion must must make make a prima prima facie facie judgment motion . "[T]he showing of of entitlement entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to showing judgment as a matter demonstrate the the absence absence of of any any material material issues issues of of fact" fact" (see (see Alvarez Prospect Hosp:~ Hosp:, demonstrate Alvarez v Prospect NY2d 320, 324 324 [1986]). [1986]). The The failure failure to make make such such a prima prima facie facie showing showing requires requires the 68 NY2d the denial of of the the motion motion regardless regardless of of the the sufficiency sufficiency of of the the opposing opposing papers, papers, (see (see Wihegrad Wihegrad denial New York Univ. Med. Ctr., 64 NY2d NY2d 851 [1985]). [1985]). v New . ·• .. -· "Once this this showing showing has has been been made, made, however, however, the the burden burden shifts shifts to the· the party party "Once ., ·• opposing the the motion motion for for summary summary judgment produce evidentiary evidentiary proof proof in admissible admissible opposing judgment to produce form sufficient sufficient to establish establish the the existence existence of material material issues issues of of fact fact which which require require a trial trial of of form the action" action" (see (see Alvarez Prospect Hosp., Hosp., 68 NY2d NY2d at 324, citing citing to Zuckerman Zuckerman v City City Alvarez v Prospect of New New York, 49 NY2d NY2d at 562). 562). The The non-moving non-moving party party must must lay bare bare all of of the the facts facts afits atits of disposal regarding regarding the the issues issues raised raised in the the motion motion (see (see Mgrditchian Mgrditchian v Donato Donato, ; 141' 141 disposal ·.· .; [* 2] 2 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 AD2d Dept 1988]). 1988]). AD2d 513 [2d Dept Serious Serious Injury Injury Insurance Law §5104(a) S5104(a) provides provides in pertinent pertinent part that: that: Insurance Notwithstanding any other other law, in any any action action by or on Notwithstanding behalf 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 no operation recovery for for non-economic non-economic loss, except except in the case case of right to recovery serious injury, or for basic basic economic economic loss 10ss....(McKinney's a serious .... (McKinney's Insurance Insurance Law §5104[a]) s5104[a]) Insurance Law §5102(d) S5102(d) defines defines "serious "serious injury" injury" as Insurance personal injury injury which results in death; death; dismemberment; dismemberment; a personal which results significant disfigurement; disfigurement; fracture; loss of of a fetus; fetus; significant a fracture; permanent loss of use of a body body organ, organ, member, member, function function or permanent system; permanent permanent consequential consequential limitation limitation of use of a body body system; organ or member; member; significant significant limitation limitation of use of a body body organ function or system; system; or a medically medically determined determined injury injury or function impairment of a non-permanent non-permanent nature nature which which prevents prevents the impairment injured person person from from performing performing substantially substantially all of the the injured material acts which which constitute constitute such such person's person's usual usual and material customary daily daily activities activities for for not less than than ninety ninety days days during during customary one hundred hundred eighty eighty days days immediately immediately following following the the the one occurrence of the injury injury or impairment. impairment. (McKinney's occurrence of (McKinney's Insurance Law §5102[d]) S5102[d]) Insurance "The determination determination of whether whether [a] plaintiff plaintiff sustained sustained a serious serious injury injury within within the "The meaning of the the statute statute is, as a rule, a question question for for the jury." N.Y.Prac., New New York York meaning jury." (31 N.Y.Prac., Insurance Law§ Law S 32:32 32:32 [2015-2016 [2015-2016 ed.]; see also, Toure v Avis Rent A Car Car Systems, Systems, Insurance Avis Rent NY2d 345 [2002]). [2002]). "[O]n "[O]n a motion motion for for summary summary judgment defendant has the judgment the defendant Inc., 98 NY2d burden. to show show that that the plaintiff plaintiff has not sustained sustained a serious serious injury injury as a matter matter of law" burden. (ld.). (Id.). [* 3] 3 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 The degree degree or seriousness seriousness of an injury injury may may be shown shown in one one of two two ways: ways: either either The expert's designation designation of a numeric numeric percentage percentage of a plaintiffs plaintiffs loss of of range range of by an expert's motion or by an expert's expert's qualitative qualitative assessment assessment of a plaintiffs plaintiffs condition condition provided provided that that motion evaluation has an objective objective basis basis and compares compares the the plaintiffs plaintiffs limitations limitations to the the evaluation normal function, function, purpose purpose and use of the affected affected body body organ, organ, member, member, function function normal ~r ~r system (see Toure v Avis Rent A Car Car Sys., 98 NY2d 345, 357 357 [2002]). [2002]). A defenda~t defenda~t system Avis Rent establish that that a plaintiff's plaintiff's injuries injuries are not serious serious within within the the meaning meaning of New New York York can establish State Insurance Insurance Law § 9 5102(d), 5102(d), by the submission submission of an affirmed affirmed medical medical report report from from a State medical expert expert who who has examined examined the plaintiff plaintiff and has determined determined that that there there are no medical objective medical medical findings findings to support support the plaintiff's plaintiff's alleged alleged claim claim (see Rodriguez Rodriguez v objective Huerfano, 46 AD3d 794 [2d Dept Dept 2007]). 2007]). AD3d 794 Huerfano, this case, case, the the plaintiff plaintiff did not suffer suffer death, death, dismemberment, dismemberment, significant In this significant disfigurement, or loss of of a fetus. fetus. Therefore, Therefore, those those categories categories of of the the Insurance Insurance Law § 9 disfigurement, 5102(d) loss of 5102(d) ·can be eliminated. eliminated. The The plaintiff plaintiff alleges alleges that that she sustained sustained permanent' permanent'loss body organ, organ, member, member, function function or system; system; a permanent permanent consequentialHriiitatio~ consequentialliriiitatio~ use of a body body organ organ or member; member; significant significant limitation limitation of use of a body body functi~'r, funCti~'n ''6~ of use of a body 6~ system or a medically medically determined determined injury injury or impairment impairment of a non-permanent non-permanent nature nature which which system prevented her from from performing performing substantially substantially all of the material material acts acts which which constitute constitLite he"r he-r prevented usual and customary customary daily daily activities activities for not less less than than ninety ninety days days during during the the. · one usual hundred eighty eighty days days immediately immediately following following the occurrence occurrence of the injury or impairment. impairment. hundred the injury The defendant defendant argues argues that that the plaintiff plaintiff did not specify specify the category category of serious serious The injury in her bill of particulars particulars and therefore, therefore, the motion motion should should be granted. granted. However, However, the injury 4 [* 4] 4 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 bill of particulars sufficiently detailed detailed to allow particulars is sufficiently injury allow a determination determination of of the the serious serious injury under under permanent permanent loss of of use of of a body body organ, organ, member, member, function system; permanent permanent function or system; consequential consequential limitation limitation of of use of of a body body organ organ or member; member; or significant significant limitation limitation of use of system (Epstein of a body body function function or system (Epstein v MTA Long Long Island Island Bus, 161 AD3d AD3d 821., 821, 822 [2d Dept Dept 2018]). 2018]). The defendant defendant submitted submitted a report from a radiologist, The report from radiologist, David David A. Fisher, Fisher, M.D.,. M.D., who who affirmed sustain a fracture affirmed that that the the plaintiff plaintiff did not sustain fracture as per per the the two two sets sets of of x-ray x-ray films films reviewed the studies reviewed by him. He attest attest that that both of of the studies are are normal normal and there is no fracture and there fracture evidence of and no radiographic radiographic evidence causally related related injury. injury. of traumatic traumatic or causally The The defendant defendant also also submitted submitted the the report report of Elliot Gross, Gross, M.D., who who performed performed an of Elliot independent independent medical medical examination examination ("IME") ("IME") of of the plaintiff plaintiff on April 2019. Dr. Gross Gros~ April 11, 2019. recorded significant deficiencies deficiencies in range recorded significant range of motion in her her cervical cervical spine, plus of motion spine, two' two·· plu~ spasms spasms in her her lumbar lumbar spine spine and and deficiencies deficiencies in range range of motion motion in her thoracolumbar thoracolt.imbar spine. spine. Dr. Gross found that that the the lumbar Gross found lumbar and cervical resolved and opined cervical strain strain were were resolved opined that there were accident related that there were no accident related injuries injuries and no significant significant findings findings on the the MRI"s 'bf MRl'·s ·of the cervical, thoracic and lumbar the cervical, thoracic lumbar regions. regions. He stated stated that that her her range range of of motion motiOn 'was was . .: . measured with a goniometer goniometer and opined opined that, that, though measured with her range range of motion was limited, it though her of motion was limitec{ nevertheless of her effort nevertheless is a function function of effort and therefore, considered subjective. therefore, considered subjective. Upon viewing the the facts facts in the light Upon review review and viewing light most most favorable plaintiff, this favorable to the the plaintiff, this Court finds finds that that the the defendant defendant has failed failed to make Court make a prima prima facie facie showing showing of of entitlementto entitl~ment tb judgment as a matter judgment matter of law law with respect respect to the plaintiff plaintiff suffering suffering a serious serious injury.· injury. 5 [* 5] 5 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 two plus The plaintiff's IME showed showed significant significant range range of of motion motion deficiencies deficiencies and two plus The plaintiffs spasms in the the plaintiffs plaintiff's lumbar lumbar spine, spine, yet the the physician physician stated stated in a conclusory conclusory manner manner spasms for his that the range of of motion motion limitations limitations were subjective, providing providing no explanation explanation for were subjective, the range that were· likely which were were recorded, that were determination recorded, which likely spasms that the spasms of the discussion of determinatio·n and no discussion not subjective. subjective. not that alleged injuries and any However, with regard to any claims of any alleged injuries that fracture and of fracture any claims with regard However, prevented the the plaintiff plaintiff from from performing performing substantially substantially all of of the the material material acts acts which which prevented than ninety for not constituted her her usual usual and customary customary daily daily activities activities for not less less than ninety days days during during constituted the one one hundred hundred eighty eighty days days immediately immediately following following her her alleged alleged injury, injury, such such are are denied. denied. films that x-ray films The defendant defendant demonstrated demonstrated through through the the radiologist radiologist and the the x-ray that the the plaintiff plaintiff The of not sustain sustain a fracture fracture in her her hand. hand. Further, Further, to sustain sustain impairment" impairment of if a' non' non:~ did not permanent nature nature which prevented her her from performing substantially substantially all of of the the mkiteri~l m'aterial from performing which prevented permanent thcin riln~ty for not activities for daily activities acts her usual usual and customary not less· less tha'nr,inE+i customary daily constitute her which constitute acts which ,_-.;·_._!., days during during the the one one hundred hundred eighty eighty days days immediately immediately following following the the occurrence occurrence of of the the days injury or impairment, a plaintiff plaintiff must must present present objective objective evidence evidence of of "a medically medically or impairment, injury : ',," Ren{A Avis RantA determined injury injury or impairment impairment of of a non-permanent non-permanent nature" nature" (see (see Toure v Avis determined Car Systems, Systems, Inc., 98 NY2d NY2d 345, 357 [2002]). [2002]). Curtailment Curtailment of of recreational recreational ~rid and Car household activities activities is insufficient insufficient to meet meet the the burden burden (Omar (Omar v Goodman, Goodman, 295 295 AD2d AD2d 413 household was not unable Dept 2002]). 2002]). The The plaintiff plaintiff testified testified that that she she was unable to perform perform substahtiali.y substantially [2d Dept . ""'. ·to ,-, I eviderice to any medical offer any all of her usual usual and not offer medical evidence activities and did not customary activities and customary of her support a claim claim underthis under this category. category. support ,' ·, ·- ·,-··: injury serious of issue The plaintiff's motion for summary judgment on the issue of serious injuryisalso the judgment summary for motion The plaintiff's ' is aiso ii'," 6 [* 6] 6 of 9 '\:' FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 INDEX NO. 62517/2018 RECEIVED NYSCEF: 01/06/2020 denied. The The plaintiff's plaintiff's MRI reports reports were were not in admissible admissible form form and were submitted denied. were not submitted defendant on his motion, motion, as claimed claimed by the plaintiff plaintiff (Casas (Casas v Montero, Montero, 48 AD3d by the defendant AD3d 730 [2d Dept Dept 2008]). 2008]). Also Also Dr. Baer's Baer's report report is not in the the proper proper format· format. and 728, 730 therefore, is inadmissible. inadmissible. therefore, Liabiility Liabiility New York York Vehicle Vehicle and Traffic Traffic Law§ Law S 1126(a), 1126(a), states states in pertinent pertinent part part that: that: New When official official markings markings are in place place indicating indicating those those portions portions of of any any When highway where where overtaking overtaking and passing passing or driving driving to the the left of of such highway markings would would be especially especially hazardous, hazardous, no driver driver of of a vehicle vehicle proceeding proceeding markings along such such highway highway shall shall at any time time drive drive on the the left left side side of such such along markings. (New (New York S 1126[a]). 1126[a]). markings. York VTL VTL § violation of of the Vehicle Vehicle and Traffic Traffic Law constitutes constitutes negligence negligence as a matter matter of "A violation (Gluck v New New York City City Transit Transit Authority, 669 [2d Dept Dept 2014]; 2014]; see law" (Gluck Authority, 118 AD3d AD3d 667, 669 Gadon v Oliva, 294 294 AD2d Dept 2002]). 2002]). A plaintiff plaintiff driver driver is entitled entitled to also Gadon AD2d 397 [2d Dept judgment matter of law on the the issue issue of liability liability if he or she demonstrates demonstrates that. that· the judgment as a matter proximate cause cause of of an accident accident was was the defendant defendant driver's driver's violation violation of the vehicle vehicle sole proximate traffic law (see Gause Gause v Martinez, Martinez, 91 91 AD 3d 595, 596 [2d Dept Dept 2012]). 2012]). traffic AD3d plaintiff's evidence evidence demonstrates demonstrates her her prima prima facie facie entitlement entitlement to Here, the plaintiff's judgment matter of law (Gluck (Gluck v New New York City City Transit Transit Authority, Authority, 118 AD3d AD3d @ judgment as a matter 669). "Crossing "Crossing a double double yellow yellow line into the opposing opposing lane lane of of traffic, traffic, in violation violation of 669). Vehicle Vehicle and Traffic Traffic Law Law § S 1126(a), 1126(a), constitutes constitutes negligence negligence as a matter matter of of law, unless unless justified emergency situation situation not of the the driver's driver's making" making" (see Gadon Gadon v Oliva, 294 justified by an emergency AD2d Dept 2002]). 2002]). AD2d 397 [2d Dept 7 \-', __ ' [* 7] 7 of 9 ; ! INDEX NO. 62517/2018 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 01/06/2020 The deposition deposition of of the the plaintiff plaintiff and the the certified certified police police report, report, , which which is admissible admissible The since, "[t]he U[t]he police police officer officer who who prepared prepared the the report report was was acting acting within within the the scope scope .of• .of. his since, duty in recording recording the the defendant defendant driver's driver's statement statement and, contrary to the the defendant's defendant's duty and, contrary contention, the the statement statement is admissible admissible as an admission admission of of a party" party" (Jackson (Jackson v Donien Donien contention, 103 AD3d AD3d 851 [2d Dept Dept 2013]), 2013]), confirm confirm that that the the defendants' defendants' vehicle vehicle entered entered into. into Trust, 103 the lane lane in which which the the plaintiff's plaintiff's vehicle vehicle was was traveling, traveling, in violation violation of of VTL VTL §§ ~~ 1126. 1126. The The the evidence submitted submitted by the the plaintiff plaintiff establishes establishes entitlement entitlement to summary summary judgment evidence judgment· as a matter of of law, thereby thereby shifting shifting the the burden burden to the the defendant defendant to demonstrate demonstrate the the existence existence matter of a factual factual issue issue requiring requiring a trial. (see Macauley Macauley v Elrac, Inc.,_, Inc~, 6 AD3d AD3d 584, 585 [2d of Dept 2004]). 2004]). The The defendant defendant testified testified that that he did not remember remember how how the the ·accident accident Dept occurred and therefore, therefore, has not created created any any issue issue of of fact fact With with regard regard to liability. liability. occurred Accordingly, based based upon upon the the foregoing, foregoing, it is Accordingly, ORDERED that that the the defendant's defendant's motion motion for for summary summary judgment DENIED ahd ff it ORDERED judgment is DENIED is further·· 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 . . ·.·. ' .. •.· liability and dismissal dismissal of of the the defendant's defendant's affirmative affirmative defense defense for for comparative comparative negligence negligence liability GRANTED; and it is further further is GRANTED; ORDERED ORDERED that that the the plaintiff's plaintiff's motion motion on the the issue issue of of serious serious injury injury is DENIED. DENIED. · The parties parties are directed directed to to appear appear before before the the Settlement Settlement Conference Conference Part Part in· in The Courtroom 1600 1600 on February February 18, 2020 Courtroom 2020 at 9: 15 a.m. 8 [* 8] 8 of 9 FILED: WESTCHESTER COUNTY CLERK 01/07/2020 10:54 AM NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 01/06/2020 The foregoing shall The foregoing shall constitute constitute the Decision Decision and Order Order of the Court. Court. York Dated: White Plains, Dated: White Plains, New New York December· 2019 December' 31, 31,2019 ~ ~. vJ-w--v<- HON. SAM D. WALKER, WALKER, J.S.C. J.S.C. 9 [* 9] INDEX NO. 62517/2018 9 of 9

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