Zane v Iafallo

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Zane v Iafallo 2020 NY Slip Op 34820(U) May 27, 2020 Supreme Court, Erie County Docket Number: Index No. 815300/2018 Judge: E. Jeannette Ogden 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: 1] ERIE COUNTY CLERK 05/27/2020 12:03 PM INDEX NO. 815300/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/27/2020 At a Special Term ofthe Supreme Court,Prut 35 thereof, hekf in the City of Buffalo, N.Y. and County of Ede on the 27 day of May 2020. STATE OF NEW YORK COUNTY OF ERJE SUPREME COURT CLIFFORD ZANE PLAINTIFF INDEXNO. 815300/2018 y. DEBORAH L. IAFALLO DEFENDANT ·APPEARANCES: Jason C. Luna, Esq. for Plaintiff, Clifford Zane 4535 Southwestern Blvd., Suite 8048 Hamburg, New York 14075 (716) 648-6666 jasonl una@jason1una.net DevanM~ Omahen, Esq. for Defendant, Deborah L. lafaHo 135 Delaware Ave., Suite200 Buffalo,New York·14202 (716) 849-350() omahen@hagelinspencer.com PLEADINGS REVIEWED: The fo lloWing electronically filed documents were considered irt connection with· these motions: DOCUMENTS NUMBERED ·Defendrult' s Notice ofMotioti, Affinnatiou .ofDevan M. Omahen Esq. with Exhibits 12-20 ·an~ Mernorahdun1 of Law .. Affirtnatio:n in opposition to Defendant's ·Motio11 for su,muiaryjudgment and in support of Plaintift"s cross-motion ot' JaS:bl'.t C. Luna; Esq. with exhibits Attorney Affinnation in· Reply and also in 3.1 1 1 of 6 [*FILED: 2] ERIE COUNTY CLERK 05/27/2020 12:03 PM INDEX NO. 815300/2018 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/27/2020 Response to Plaintiff's ctoss,.motion 33 Plaintiff's Reply Affomation The Plaintiff commenced this personal injury·action to recover damages . for alleged serious injuries sustained as a result.of a motor vehicle collision that occurred on November 23,2015. Following joinder of issue and completion ofdiscovery, Defendant moves for an Order granting Stlininary fodgment dismissing Plaintiffs complaint al1eging that Plaintiffhas not sustained a seriot1s injury within the meaning of InsuranceLaw§5102(d), Plaintiff opposesDefendant'.s motion and cross moves for an Order granting PlaintiffSummary Judgment on the issues of'negligence. Upon consideration of the pleadings reviewed and due deliberation having been had thereon, the Court denies Defendant's motion for summary judgmem upon the grounds that Plaintiff did not sustain a serious injury and grants Plaintiffs motion for summary judgment on negligence for reasons hereinafter set forth. Defendant's Motion for Summary Judgment pursuantto CPLR §5l02(d) Plaintiff alleges, in the Verified Bill of Particulars; that the motor vehicle collision caused injury to his cervical, thoracic and lumbar spine, bilaternl arms, shouldersand·resulting headaches and scarring. Plaintiff further alleges that his injuries prevented him from petfoiming his custoinary daily activities for a period of at least 90 days immediately following the 180 days after the collision, that he has 40percent loss of range of motion of his cervical spine and that said injuries are permanent. Thusi Plaintiff claims to have sustained serious injuty·as defined in§ 5102(d)of the.NYS ltisuta:nce Law pursuant to the.categories of ·significant disfigurement; permanentconsequential liniitation .of use of a body organ 01· member {permanent consequential limitation), significant linii tation of use of a body functi 011 or $ystem (~ignificant lirriitation); .a. medically detenriined injury of a non~permanent riatui:-e 2 of 6 [*FILED: 3] ERIE COUNTY CLERK 05/27/2020 12:03 PM NYSCEF DOC. NO. 34 INDEX NO. 815300/2018 RECEIVED NYSCEF: 05/27/2020 which prevented Plaintiff from performing substantially all of the acts which constituted her usual and c11stomary daily activities for not less than ninety (90} days during the m1e hundred eighty ( 180) days immediately following the occurrence of the injury or impairment (90/180) and the significant disfigurement due to surgical scarring (significant disfigurement) categories set forth in the. statute; In support of its motion, Defendai1t submits Plaintiffs Verified Bill of Pai1iCulars, transcripts of the deposition: testimony of Plaintiffat1d the sworn independent medical . . examination report of Dr, John Leddy' s exaniination of Plaintiff, which includes medical records of the Plaintiff and concludes that "Plaintiffs injuries were pre-existing and Plaintiff only sustained sprains andstrainsin theNovember2015 accident Dr, Leddy also opines that Plaintiff's surgery in 2019 was due to a subsequentaccident/injury after the 2015 motor vehicle collision because the medical ·examinations ofPlaintiff after the2015 accident.indicate. Plaintiff has extremely advanced and long-standing degenerative disc and bone disease at every cervical level from C2-3 through C6~7with advanced disc~osteophyte complexatC6-7, without any evidence of trauni.atic edema, traumatic disc bulge, traumatic disc herniation or fracture at any .. . . cervical leveL" Dr. Leddy further opines that "there is no medical evidence of the need for current ot future medical or surg1eal treatment of Plaintiff as a direct result .of the November 23, 2015 motor vehicle collision, that Plaintiff did not sustained a permanent or consequential limitation of use of his cervical spine as a direct· result of the November 23, 2015 collision and Plainti ffdid not stii:itain a medically determined injury that Hn11 ted -µiost of his daily activities during.the frrst90 days out of 180 days after the Novembet23i 2015 collision, Defendant pleads that Plaintiff's claim ofsignificant disfigurement as a result bf the surgical scatting must also be. dismissed because the surgery was not requited as a result of the 3 of 6 [*FILED: 4] ERIE COUNTY CLERK 05/27/2020 12:03 PM NYSCEF DOC. NO. 34 INDEX NO. 815300/2018 RECEIVED NYSCEF: 05/27/2020 collision. In supporttheteot: Defendant relies on the portion of Dr. Leddy's report wherein he opines that the cervical discectomy ;md fusion was not c:asually related to the motor vehicle collision but rather to a pre-existing degenerative condition. Defendant fmiher pleads that, in addition to the opinion of Dr. Leddy as aforementioned, the Plaintiffs deposition testimony establishes that he was never unable to shower or get dressed on his own, so his usual and customary activities were never interrupted. Based uport the sworn deposition testimony of the Plaintiff, submitted by Defendant in support of the rt1otiort, as well as and the report of Dr. Leddy, itis determined that Defendant has met her burden With respect.to the Claim ofperinanent consequential limitation, significant limitation, significant disfigurement and 90/180 serious injury categories, thereby shifting the burden to Plaintiff to s11bmit evidence sufficienttoraise a triable issue of fad regarding those categories. In opposition toDefendant's motion, Plaintiff also relies on the Verified Bill of Particulars, the certification of medical clearance, chiropractic records and the affirmation of Dr. Loubert Suddaby,. a: neurosurgeon who treated Plaintiff for injuries sustained to his cervical spine in the inotot vehicle collision and who disagrees \vith the opinion of Dr. Leddy. Dr. Suddaby 11.otes that the objective findings of the MRrs he reviewed demonstrate disc herniations at C3-C7 and objective testing indicates that Plaintiff experienced restriction of his cervical spine, 40 percent loss of nortnalflexion, extension and rotation of his cervical .spine as well as weakness in the pper and lower extreniities bilaterally, He .opines. that Plaintiff sustained a perirtanent consequential limitation of use of his .cetvica:i spine at CJ ~C7 with resultingradic:ulopathy down his ~pper extremities bilaterally, inclusive of his·arrns, hands and fingers. and decreased loss offine motor skills. W11en Plaintiff uses 1teck1 arms; hands and 4 4 of 6 [*FILED: 5] ERIE COUNTY CLERK 05/27/2020 12:03 PM NYSCEF DOC. NO. 34 INDEX NO. 815300/2018 RECEIVED NYSCEF: 05/27/2020 fingers to perfonn his usual, nornml, ordinary fimctions such as getting dressed, washing dishes and activities thatinvolve btmding andHfting,itwill cause inflammation Ofthe nerve toots of the cervical spine. Plaintiff's inability to perform the tasksjdentified are natural and expected medical consequences of his injuries. This will be continuing and pennanent. The fusion surgery thatwasrequired to correct the injuries sustained in the November23, 2015 motor vehicle collision resulted in a significant loss of range of Plaintiff's cervical spine and permanent disfiguring scarring at the surgical site. With regard to the 90/180 claim, the pain; numbness and tingles in Plaintiff's upper extremities explain the difficulty he experiences in performing everyday tasks and Plaintiff has sustained a qualitative use of his cervicaL spine and upper extremities that is permanent Dr. Suddaby'B affirmation report and Plaintiffs deposition testimony create questions of fact as to whether Plaintiffs scar and resultant injuries are causally related to the motor vehicle collision and whether Plaintiff sustained a permanent consequentiaUimitation, significant limitation and whether Plaintiff sustained a medically determirtedinjury that limited most of his daily activities doting the first 90 days out of 180 days after the inotot vehicle collision. Thus, there is a difference of opinion reg:ardihg the serious injury categories; the nature, cause and extent of plaintiffs injuries, creatingtriable issties of fact for resolution by a jury (Cook v. Peterson, 137 A.D.3d 1394 (4th Dep't 2016)), Plaintifrs, motkm fofSummaty Jtidgtneht on Negligence Plaintiffllas cross moved for srimmaryjudgmentoh the.issues of negligence; Plaintiff offers the deposition testimony ofDefendant,.alortg.withthe uncertified copy of the police report and pleads that Defendant,'s testiinony establish.es that she failed fo see wha~ thete wa:s to be 11 5. 5 of 6 [*FILED: 6] ERIE COUNTY CLERK 05/27/2020 12:03 PM NYSCEF DOC. NO. 34 INDEX NO. 815300/2018 RECEIVED NYSCEF: 05/27/2020 seen" and was therefore negligent. The accident at issue was a rear end collision so Plaintiff has met the initial burden on the issue of negligence, thereby shifting the burden to Defendant to establish material issues of fact. Defendant replies to Plaintiffs cross motion and avers that Plaintiff suddenly and without warning slammed on the breaks thereby creating questions of fact regarding how this accident happened. It is well established that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle. To rebut the presumption, the driver of the rear vehicle must submit a non-negligent explanation for the collision (Bender v. Rodriguez, et al. , 302 A.D.2d 882 (4th Dept. 2003). In the instant case, Defendant states that she looked away momentarily and saw no reason why Plaintiff would slam on her breaks and suddenly stop. Generally, a claim that the driver of a rear-ended vehicle made a sudden stop is insufficient to constitute a non-negligent explanation for the accident (Bajrami v Twinkly Cap Corp., 147 AD 3d 469 [1 st Dept. 2017]). Looking away immediately before impact is not a sufficient non-negligent explanation for the collision. Accordingly, it is hereby ORDERED that the motion of Defendant for summary judgment on the issue of causation and serious injury pursuant to the claimed categories of Insurance Law §5102 (d) is DENIED, and it is further ORDERED that Plaintiffs motion for summary judgment on the issue of negligence is GRANTED. Entered: May 27, 2020 6 6 of 6

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