Ciani v Botta

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Ciani v Botta 2020 NY Slip Op 35124(U) October 2, 2020 Supreme Court, Suffolk County Docket Number: Index No. 602659/2019 Judge: Martha L. Luft 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. INDEX NO. 602659/2019 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/13/2020 SHORT FORM ORDER INDEX No. 602659/2019 CAL. No. 201902405MV SUPREME COURT - STA TE OF NEW YORK I.A.S. PART 50 - SUFFOLK COUNTY PRESENT: Hon. _ __,MA'-""'-'=R!:....!T~H=A.:....:=.L'""'L=U=F~T!a,__ . __ Acting Justice of the Supreme Court MOTION DATE 4/14/20 (002) MOTION DATE 7/21 /20 (003) - l=/2=0_ __ ADJ. DATE _ _ 7"-'/=2 Mot. Seq.# 002 MD # 003 MG ---------------------------------------------------------------X MILLER, MONTIEL & STRANO, P.C. Attorney for Plaintiff 600 Old Country Road, Suite 241 Garden City, New York 11530 PAUL CIANI, Plaintiff, - against - SCAHILL LAW GROUP, P.C. Attorney for Defendant 1065 Stewart Avenue, Suite 210 Bethpage, New York 11714 NICOLE R. BOTTA, Defendant. ---------------------------------------------------------------X Upon the following papers read on this motion and cross motion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers by defendant, dated March 6, 2020 ; Notice of Cross Motion and supporting papersJ2y plaintiff, dated June 4, 2020 ; Answering Affidavits and supporting papers by defendant dated July 9,, 2020 and by plaintiff, dated June 6, 2020 ; Replying Affidavits and supporting papers _ _ ; Other _ _ ; (and ttfter ltctt1 i11g eM11:!lel i11 5t1ppo1't imd oppo:!ied to the motion) it is, ORDERED that the motion by defendant Nicole Botta seeking summary judgment dismissing the complaint is denied; and it is further ORDERED that the cross motion by plaintiff Paul Ciani seeking summary judgment in his favor on the issue of negligence and striking defendant's first, second and fifth affirmative defenses is granted. Plaintiff Paul Ciani commenced this action to recover damages for injuries allegedly sustained as a result of a motor vehicle accident that occurred on the westbound Northern State Parkway, near Exit 39, in the Town of Huntington on April 18, 2018. It is alleged that the accident occurred when the vehicle owned and operated by defendant Nicole Botta struck the rear of the vehicle owned and operated by plaintiff while it was stopped in traffic in the right lane of travel of the Northern State Parkway. By his bill of particulars, plaintiff alleges, among other things, that he sustained various personal injuries as [* 1] 1 of 7 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 INDEX NO. 602659/2019 RECEIVED NYSCEF: 10/13/2020 Ciani v Botta Index No. 602659/2019 Page 2 ation of pre-exiting a result of the subject collision, including disc herniations at level L2-L3, aggrav lumbar spine conditions, and cervical and lumbar radiculopathy. to have been Defendant now moves for summary judgment on the basis that the injuries alleged injury threshold sustained by plaintiff as a result of the subject accident do not meet the serious submits copies of the requirement oflnsur ance Law§ 5102 (d). In support of the motion, defendant Edward Toriello and Dr. pleadings, plainti ffs deposition transcript, and the sworn medical reports of Dr. orthopedic examination Jonathan Luchs. At defend ant's request , Dr. Toriello conducted an independent ed an independent of plaintiff on September 23, 2019. Also at defendant's request, Dr. Luchs perform spine on March 10, radiological review of the magnetic resonance images taken of plainti ffs lumbar ant failed to meet her 2017 and June 1, 2018. Plainti ff opposes the motion on the grounds that defend that he sustained injuries prima facie burden, and that the evidence submitted in opposition demonstrates to the subject accident. in the "limitations of use" and the "90/180" categories of the Insurance Law due Mark Sterling and In opposition to the motion , plaintiff submits the sworn medical report of Dr. uncertified copies of plainti ffs medical records concerning the injuries at issue. Law was to weed It has long been established that the "legislative intent underlying the No-Fault 84 NY2d 795, 798, 622 out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 865 [2002]). YS2d 900 [1995]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d is to be made injury" s "seriou Therefore, the determination of whether or not a plaintiff has sustained a 570 [1982]; Porcano v by the court in the first instance (s~e Licari v Elliott, 57 NY2d 230,45 5 NYS2d 579,47 3 NYS2d AD2d Lehman , 255 AD2d 430,68 0 NYS2d 590 [2d Dept 1988]; Nolan v Ford, 100 516 [2d Dept], affd 64 NY2d 681 , 485 NYS2d 526 [1984]). results in death; Insurance Law § 5102 (d) defines a "serious injury" as "a personal injury which ent loss of use of a body dismemberment; significant disfigurement; a fracture; loss of a fetus; perman of a body organ or organ, member, function or system; permanent consequential limitation of use lly determined injury or member; significant limitation of use of a body function or system; or a medica performing substantially impairment of a non-permanent nature which prevents the injured person from activities for not less all of the material acts which constitute such person 's usual and customary daily nce of the injury occurre the than ninety days during the one hundred eighty days immediately following or impairment." nce claim is A defendant seeking summary judgme nt on the ground that a plainti ffs neglige a prima facie case that barred under the No-Fault Insurance Law bears the initial burden of establishing , supra; Gaddy v Eyler, the plaintiff did not sustain a "serious injury" (see Toure v Avis Rent A Car Sys. judgme nt based on the 79 Y2d 955, 582 NYS2d 990 [1992]). When a defendant seeking summary "those findings must be in lack of serious injury relies on the findings of the defendant' s own witnesses, " to demonstrate admissible form, [such as], affidavits and affirmations, and not unsworn reports 270, 587 NYS2d 692 entitlement to judgment as a matter of law (Pagano v Kingsbury, 182 AD2d 268, nt using the plainti ffs [2d Dept 1992]). A defendant may also establish entitlement to summary judgme own physicians (see deposition testimony and medical reports and records prepared by the plainti ffs v Wright, 268 AD2d 79, Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Grossman 831 [2d Dept 1997]; 707 NYS2d 233 [2d Dept 2000] ; Vignola v Varrichio, 243 AD2d 464, 662 NYS2d [* 2] 2 of 7 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 INDEX NO. 602659/2019 RECEIVED NYSCEF: 10/13/2020 Ciani v Botta Index No. 602659/2019 Page 3 Torres v Micheletti, 208 AD2d 519,616 NYS2d 1006 [2d Dept 1994 ]). Once a defendant has met this burden, the plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law (see Dufel v Green , supra; Tornabene v Pawlewski, 305 AD2d I 025, 758 NYS2d 593 [4th Dept 2003] ; Pagano v Kingsbury, supra). Here, defendant, by submitting competent medical evidence and plaintiffs deposition transcript , has established a prima facie case that plaintiff did not sustain a serious injury within the meaning of v Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys. , supra; Gaddy v Eyler, supra; Al-Khilewi Turman , 82 AD3d 1021, 919 NYS2d 361 [2d Dept 2011]). Defendant's examining orthopedist, Dr. Toriello, states in his report that an examination of plaintiff revealed he has full range of motion in his spine, that there was no evidence of tenderness, atrophy or muscle spasm upon palpation of the paraspinal muscles, and that the straight leg raising test was negative. Dr. Toriello states that plaintiff has a normal toe and heel gait, and that there were no sensory or motor deficits in plaintiffs upper and lower extremities. Dr. Toriello opines that the strains and sprains to plaintiff s spine that were superimposed upon pre-existing degenerative disc disease have resolved, and that plaintiff s pre-existing spinal condition was not exacerbated by the subject accident. He states that plaintiff s spinal examination was normal, and that there is no objective evidence of cervical or lumbar radiculopathy. Dr. Toriello further states that plaintiff does not have any objective evidence of a continued orthopedic disability , that he currently is working and may continue to do so without any restrictions, that he is capable of performing all of his activities of daily living without restrictions, and that he does not require any additional orthopedic treatment. Additionally, defendant's examining radiologist, Dr. Luchs, states in his medical report that a review of plaintiff s MRI films of lumbar spine taken one year before and two months after the subject accident reveals that plaintiff suffers from advanced multilevel lumbar degenerative disc disease and facet arthropathy throughout his lumbar spine. Dr. Luchs states these changes are chronic, longstanding, degenerative, and predate his alleged injuries. Dr. Luchs further states that there are no findings on the MRI study that are causally related to the subject accident. Furthermore, reference to plaintiff s own deposition testimony sufficiently refutes the allegations that he sustained injuries within the limitations of use and the 90/180 categories of the Insurance Law (see Strenk v Rodas, 111 AD3d 920, 976 NYS2d 151 [2d Dept 2013] ; Marin v Jeni, 108 AD3d 656, 969 NYS2d 165 [2d Dept 2013]; Bucci v Kempinski, 273 AD2d 333 , 709 NYS2d 595 [2d Dept 2000]). Plaintiff testified at an examination before trial that following the accident he missed occasional days from his work as a private investigator, and that, although he has modified his working schedule from six to seven days a week to four days a week and has not been able to work his usual hours of 60 to 70 hours per week since the accident, he has never been directed by a medical professional to do so. He • testified that he stopped attending physical therapy around July 2019, because he did not believe that he was getting better, and that he currently has an appointment scheduled with his primary care physician in approximately three months. Plaintiff further testified that he previously has received physical therapy and treatment for low back and neck pain because he has arthritis. [* 3] 3 of 7 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 INDEX NO. 602659/2019 RECEIVED NYSCEF: 10/13/2020 Ciani v Botta Index No. 602659/2019 Page 4 le form Thus, defendant shifted the burden to plaintiff to come forward with evidence in admissib the of meaning the within to raise a material triable issue of fact as to whether he sustained an injury ly Zuckerman Insurance Law (see Pommells v Perez, 4 NY3d 566, 797 YS2d 380 [2005]; see general nt limitation significa a v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]). A plaintiff claiming e medical of use of a body function or system must substantiate his or her complaints with objectiv (see duration its evidence showing the extent or degree of the limitation caused by the injury and , 35 AD3d Ferraro v Ridge Car Serv. , 49 AD3d 498, 854 NYS2d 408 [2d Dept 2008]; Mejia v DeRose (2d 642 407, 825 NYS2d 772 [2d Dept 2006]; Laruffa v Yui Ming Lau, 32 AD3d 996, 821 NYS2d 2005]). Dept 2006]; Kearse v New York City Tr. Auth., 16 AD3d 45, 789 NYS2d 281 [2d Dept ... ), relates to "Whether a limitation of use or function is ' significant' or 'consequential' (i.e. important ve nature of an medical significance and involves a comparative determination of the degree or qualitati at 798). injury based on the normal function , purpose and use of the body part" (Du/el v Green , supra es, categori use" of ions To prove the extent or degree of physical limitation with respect to the "limitat of motion either objective evidence of the extent, percentage or degree of the limitation or loss of range be a must there or d and its duration based on a recent examination of the plaintiff must be provide e basis, sufficient description of the "qualitative nature" of plaintif fs limitations, with an objectiv (see Perl v part correlating plaintif fs limitations to the normal function, purpose and use of the body supra at 350; Meher, 18 Y3d 208, 936 NYS2d 655 [2011]; Toure v Avis Rent A Car Systems, Inc., 83 AD3d see also Valera v Singh , 89 AD3d 929, 923 NYS2d 530 [2d Dept 2011]; Rovelo v Volcy, ed consider is use of n 1034, 921 NYS2d 322 [2d Dept 2011]). A minor, mild or slight limitatio e of insignificant within the meaning of the statute (see Licari v Elliott, supra). However, evidenc supra; Meher, v Perl (see contemporaneous range of motion limitations is not a prerequisite to recovery Paulino v Rodriguez, 91 AD3d 559, 937 NYS2d 198 [1st Dept 2012]). In opposition to the motion, plaintiff submitted competent medical evidence raising a triable of uses issue of fact as to whether he sustained serious injuries to his spine under the limitations 316 [2d Dept categories of the Insurance Law (see Garafano v Alvarado, 112 AD3d 783 , 977 NYS2d Cab Corp., 2013]; David v Caceres , 96 AD3d 990, 947 NYS2d 990 [2d Dept 2012]; Williams v Fava 1091, 914 90 AD3d 912, 935 NYS2d 90 [2d Dept 2011]; Compass v GAE Transp., inc., 79 AD3d based upon NYS2d 255 [2d Dept 2010]). Dr. Sterling, plaintiff's treating physician, states in his report, tions of his contemporaneous and recent examinations of plaintiff and his review of the MRJ examina deficits plaintiff's lumbar spine, that plaintif fs injuries were permanent, and that the range of motion 2012]; Dept [2d 95 were significant (see Bykova v Sisters Trans, Inc. , 99 AD3d 654, 952 NYS2d 1094, 913 Kanard v Setter, 87 AD3d 714, 928 NYS2d 782 [2d Dept 2011]; Dixon v Fuller, 79 AD3d his spine to d NYS2d 776 [2d Dept 2010]). Dr. Sterling further states that the injuries plaintif f sustaine Harris v and the related range of motion limitations are causally related to the subject accident (see that states Boudar t, 70 AD3d 643, 893 NYS2d 631 [2d Dept 201 0]). Additionally, Dr. Sterling poor balance following the subject accident plaintiff began to exhibit radicular symptoms, the onset of ies, extremit lower the with ambulation, difficulty walking, difficulty lifting and sensation deficits of treatment, and along with increased neck and back pain, which he had not experienced during his prior a triable issue raise to t that plaintiff's prognosis is poor. Consequently, Dr. Sterling's report is sufficien of_uses of fact as to whether plaintiff sustained a serious injury to his spine within the limitations Rui Dong v Yoi Choo[ categories of the Insurance Law as a result of the subject accident (see Young [* 4] 4 of 7 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 INDEX NO. 602659/2019 RECEIVED NYSCEF: 10/13/2020 Ciani v Botta Index No. 602659/2019 Page 5 AD3d 644,89 7 NYS2d Wang, 88 AD3d 991,93 1 NYS2d 373 [2d Dept 2011]; Gussack v McCoy, 72 513 [2d Dept 201 O]). presents evidence Moreover, where a defendant in an action seeking damages for a serious injury the plainti ff must come that a plainti ffs alleged pain and injuries are related to a pre-existing condition, ells v Perez, 4 NY3d forward with medical evidence addressing the defense of lack of causation (Pomm NYS2d 74 [2d Dept 566, 580, 797 NYS2d 380 [2005]; see Ciordia v Luchian, 54 AD3d 708, 864 Giraldo v Mandanici, 24 2008]; Luciano v Luchsinger, 46 AD3d 634, 847 NYS2d 622 [2d Dept 2007]; sly treated plaintiff for AD3d 419, 805 NYS2d 124 [2d Dept 2005]). Dr. Sterling states that he previou March 7, 2017. Dr. back pain with radicular symptoms, but without lower extremity weakness on taken on March 10, 2017, Sterling explains that he reviewed plainti ffs MRI report for his lumbar spine herniations, that plaintiff which revealed multilevel lumbar degenerative disc and facet disease, and disc that plainti ffs range of received physical therapy and treatment for his symptoms until June 8, 2017, that he was capable of motion in lumbar spine was greatly improved when his treatment ceased, and Sterling explains that performing all of his daily living activities without restriction. Furthermore, Dr. of the lumbar spine plaintiff has sustained an aggravation of the multilevel degenerative disc disease these limitations and with significant progression of his pre-motor vehicle accident condition, and that worsening lumbar spinal condition are causally related to the subject accident. of defendants' Inasmuch as the affirmed medical reports of plainti ffs expert conflicts with those of the subject accident experts, who concluded that the injuries plaintiff sustained to his spine as a result of judgme nt as a matter of were resolved, triable issues of fact have been raised, precluding the granting plainti ffs injuries are law. "Where conflicting medical evidence is offered on the issue of whether a one for the jury" (Noble v permanent or significant, and varying inferences may be drawn, the question is v Garcia, 82 AD3d 561, Ackerman, 252 AD2d 392,39 5, 675 NYS2d 86 [1st Dept 1998]; see Johnson 7 [1st Dept 2008]; 919 NYS2d 13 [1st Dept 2011]; LaMas a v Bachman, 56 AD3d 340, 869 NYSl Burghezi, 227 AD2d 941, Ocasio v Zorbas, 14 AD3d 499, 789 NYS2d 166 [2d Dept 2005]; Reynolds v that at least some of his 643 NYS2d 248 [4th Dept 1996]). Furthermore, "where [a] plainti ff establishes proof with respect to other injuries meet the 'no-fau lt' threshold, it is unnecessary to address whether his ant's motion for summary injuries he allegedly sustained would have been sufficient to withstand defend Rubin v SMS Taxi Corp., judgment" (Linton v Nawaz, 14 NY3d 821,82 2,900 NYS2d 239 [2010]; see for summary 71 AD3d 548, 898 NYS2d 110 [1st Dept 2010]). Accordingly, defendant's motion judgme nt dismissing the complaint is denied. nce, arguing that Plaintiff cross-moves for summary judgme nt in his favor on the issue of neglige vehicle was struck in defendant is the sole proximate cause of the subject accident, because his stopped fifth affirmative defenses the rear by defendant's vehicle. Plaintiff also argues that the first, second and t of the motion, plaintiff of defendant's should be stricken as such defenses are without merit. In suppor ant opposes the motion on submits copies of the pleadings, and the parties' deposition transcript. Defend nce. the grounds that there are triable issues of fa~t as to the subject acciden t's occurre to maintain a It is well settled that a driver approaching a vehicle from the rear is bound e reasonable care to avoid reasonably safe rate of speed and control over his or her vehicle, and to exercis Nsiah-Ababio v colliding with the other vehicle (see Vehicle and Traffic Law§ 1129 [a]; see also [* 5] 5 of 7 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 INDEX NO. 602659/2019 RECEIVED NYSCEF: 10/13/2020 Ciani v Botta Index No. 602659/2019 Page 6 vehicle Hunter, 73 AD3d 672, 913 NYS2d 659 [2d Dept 2010]). A rear-end collision with a stopped g that requirin thereby vehicle, creates a prima facie case of negligence against the operator of the moving the collision operator to rebut the inference of negligence by providing a non-negligent explanation for dent Indepen v (see Tutrani v County of Suffolk , 10 NY3d 906, 861 YS2d 610 [2008]; Pollard Whelan , 83 Beauty & Barber Supply Co., 94 AD3d 845, 942 NYS2d 360 [2d Dept 2012]; Cortes v 381 [2d NYS2d 837 AD3d 763, 922 NYS2d 410 [2d Dept 2011]; Ramirez v Konstanzer, 61 AD3d 837, sudden stop of Dept 2009]). A non-negligent explanation for the collision , such as mechanical failure, a inference of the the vehicle ahead, or an unavoidable skidding on wet payment is sufficient to overcome AD3d 924, negligence and preclude an award of summary judgment (see Ramos v TC Paratransit, 96 587 [2d Dept 946 NYS2d 644 [2d Dept 2012]; Fajardo v City of New York, 95 AD3d 820, 943 NYS2d 2012]; Davido ffv Mullokandov, 74 AD3d 862, 903 NYS2d 107 [2d Dept 2010]). t as Based upon the adduced evidence, plaintiff established his prima facie entitlement to judgmen defendant's a matter oflaw by demonstrating that the sole proximate cause of the subject accident was 539 [2d NYS3d 112 894, violation of the Vehicle and Traffic Law (see Clements v Giatas, 178 AD3d AD3d 1015, Dept 2019]; Motta v Gomez, 161 AD3d 725, [2d Dept 2018] ; O'Rourke v Carucci , 117 118 NYS3d 802, 986 NYS2d 521 [2d Dept 2014]; see also Rodriguez v City of New York , 181 AD3d westbound 433 [2d Dept 2020]; ). Plaintiff testified at an examination before trial that he was traveling vehicle to a in the right lane of the Northern State Parkway , that traffic was heavy, that he brought his four or five gradual stop due to traffic condition, and that his vehicle was stopped for approximately testified seconds when it was struck in the rear by the vehicle operated by defendant. Plaintiff further subject the to prior vehicle that he was looking straight ahead, that he did not observe defendant's horns blowing. accident's occurrence, and that prior to the impact he did not hear any tires screeching or speed and of rate safe ly A driver approaching a vehicle from the rear is bound to maintain a reasonab other vehicle control over his or her vehicle, and to exercise reasonable care to avoid colliding with the 1265, AD3d 34 , Inc. (see Vehicle and Traffic Law§ 1129 [a]; Brooks v High St. Professional Bldg., g traffic 825 NYS2d 330 [4th Dept 2006]). Further, vehicle stops that are foreseeable under the prevailin she or he since conditions, even if sudden and frequent, must be anticipated by the driver who follows, hv has a duty to maintain a safe distance between his or her vehicle and the car ahead (Shama see Vehicle Richmo nd County Ambula nce Serv. , 279 AD2d 564, 565 , 719 NYS2d 287 [2d Dept 2001]; forward and Traffic Law§ l 129[a]). Therefore, plaintiff has shifted the burden to defendant to come (see Emil with a nonnegligent explanation to raise a triable issue of fact warranting a trial on the merits y generall see 2006]; Dept [2d Norsic & Son, Inc. v L.P. Transp., Inc. , 30 AD3d 368, 815 NYS2d 736 Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). In opposition to plaintiff s prima facie showing, defendant failed to provide a non-negligent 713 [2d Dept explanation for the collision (see (see Yong Dong Liu v Lowe, 173 AD3 946, 102 NYS3d nte v 2019] ; De La Cruz v Ock Wee Leong, 16 AD3d 199, 791 NYS2d 102 [I st Dept 2005]; Agramo her of offer simple nt's City of New York, 288 AD2d 75, 732 NYS2d 414 [ls t Dept 2001]). Defenda nt (see attorney ' s affirmation is insufficient to defeat plaintif fs motion for partial summary judgme Buildgreen v Corp. Equities Lazarre v Gragston , 164 AD3d 574, 81 NYS3d 541 [2d Dept 2018]; 1375 700, 874 Solutions, LLC, 120 AD3d 783, 992 NYS2d 288 [2d Dept 2014]; Schickl er v Cary, 59 AD3d the traffic that trial before NYS2d 233 [2d Dept 2009]). Moreover, defendant testified at an examination right lane prior on the Northern State Parkway was stop-and-go, that she was traveling westbound in the [* 6] 6 of 7 INDEX NO. 602659/2019 FILED: SUFFOLK COUNTY CLERK 10/13/2020 10:43 AM NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 10/13/2020 Ciani v Botta Index No. 602659/2019 Page 7 to the accident's occurrence, and that she believes she observed plaintiffs vehicle prior to striking the rear of plaintiffs vehicle, although she does not recall when she saw the vehicle for the first time. She testified that at the time of the accident she was looking straight ahead, that he "must have stopped his vehicle, but she did not see him stop and stepped on the gas," striking his vehicle in the rear. Defendant further testified that she pressed hard on her brakes in an attempt to avoid the accident, but was unable to do so. As a result, defendant has failed to produce any evidence that she was faced with an emergency situation not of her own making at the time of the accident's occurrence (see Mughal v Rajput, l 06 AD3d 886,965 NYS2d 545 [2d Dept 2013]; Muye v Liben, 282 AD2d 661, 723 NYS2d 510 [2d Dept 2001]). Accordingly, plaintiffs motion for summary judgment in her favor on the issue of negligence and striking defendant's first, second and fifth affirmative defenses is granted. HON. MARTHA L. LUFT FINAL DISPOSITION [* 7] X 7 of 7 NON-FINAL DISPOSITION

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