Baez v Stover

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Baez v Stover 2021 NY Slip Op 30445(U) February 10, 2021 Supreme Court, New York County Docket Number: 153689/2013 Judge: Suzanne J. Adams 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] NEW YORK COUNTY CLERK 02/17/2021 12:59 PM NYSCEF DOC. NO. 199 INDEX NO. 153689/2013 RECEIVED NYSCEF: 02/17/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SUZANNE J. ADAMS PART IAS MOTION 21 Justice ---------------------------------------------------------------X TOMAS BAEZ, Plaintiff, INDEX NO. 153689/2013 MOTION DATE NIA MOTION SEQ. NO. 008 -vANTHONY STOVER. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, DECISION + ORDER ON MOTION Defendants. ----------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 008) 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195. 196, 197, 198 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is ordered that defendants' motion for summary judgment and plaintiffs cross-motion for partial summary judgment are both denied. Triable issues of fact exist that preclude the granting of summary judgment on both liability and damages. This is a personal injury action arising out of a motor vehicle incident which occurred on October 14, 2012, on Broadway at or near the intersection of l 701h Street in Manhattan. Plaintiff alleges that his vehicle was hit in the rear by a bus operated by defendant Anthony Stover and owned by defendant New York City Transit Authority. Defendants now move pursuant to CPLR 3212 for summary judgment dismissing the action on the grounds that plaintiffs own negligence caused the occurrence, and that plaintiffs alleged injuries do not amount to a "serious injury" as defined in Insurance Law§ 5102(d), New York's "No-Fault Law." Plaintiff opposes the motion, Page 1 of4 15368912013 SAEZ, TOMAS vs. STOVER, ANTHONY Moijon No. 008 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 02/17/2021 12:59 PM NYSCEF DOC. NO. 199 INDEX NO. 153689/2013 RECEIVED NYSCEF: 02/17/2021 and cross-moves pursuant to CPLR 3212 for summary judgment against defendants on the issue ofliability. Defendants oppose the cross-motion. It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) (citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)). The party opposing a motion for summary judgment is entitled to all reasonable inferences most favorable to it, and summary judgment will only be granted if there are no genuine, triable issues of fact. Assafv. Ropog Cab Corp., 153 A.D.2d 520, 521-22 (!" Dep't 1989). Additionally, the question of whether a plaintiff suffered a "serious injury" within the meaning of§ 5 I 02(d) of the No-Fault Law is one of law that can and should be disposed of by summary judgment. See Toure v. Avis Rent A Car Sysrems, Inc., 98 N.Y.2d 345 (2002). With respect to the issue of liability, the court notes - as do the parties - that the decision and order of this court dated July 15, 2014 (Hon. Michael D. Stallman), denied plaintiffs initial motion for partial summary judgment on the grounds that the court could not detennine from the bus surveillance video the color of the traffic signal before the time of impact, and whether plaintiff's vehicle was stopped at the moment of impact. This court has also viewed the video and comes to the same conclusion. Moreover, the deposition testimony of both plaintiff and defendant Stover differ substantially in their description of the events leading to the impact, with plaintiff stating that he saw a yellow traffic light, slowed up, and come to a stop, and defendant stating that the light never changed to red and plaintiff stopped short at the yellow light. .. Whether the traffic light was yellow or red, whether defendant Stover was following plaintiffs vehicle too closely, or whether plaintiff cut off the bus and then stopped abruptly before the light Page 2 of 4 153689/2013 BAEZ, TOMAS vs. STOVER, ANTHONY Motion No. 008 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 02/17/2021 12:59 PM NYSCEF DOC. NO. 199 INDEX NO. 153689/2013 RECEIVED NYSCEF: 02/17/2021 changed, perhaps to pick up passengers, are all among significant factual questions for resolution by the trier thereof, not for this court to determine as a matter of law. Likewise, summary judgnient must be denied on the issue of damages because both parties present to the court conflicting evidence as to plaintiffs medical condition. For example, defendant proffers the report ofigor Rubinshteyn, M.D. (Exhibit H .to the moving papers), which states that while plaintiff displayed some limitations in range of motion, he also displayed "voluntary suboptimal effort" on the range of motion testing, and concludes that plaintiff has only pre-existing degenerative conditions and is fully capable of returning to work without restrictions. Plaintiff, however, proffers, inter alia, the affirmation of Gabriel L. Dassa, D.O., dated October 8, 2020 (Exhibit F to the opposing papers), who states that he first examined plaintiff shortly after the subject incident and concludes that "due to ongoing symptoms, restrictions in range of motion, the fact that his medical history was noncontributory, MRI findings and my O\Vn clinical examination, that [plaintiffs] injury represents a significant limitation in the use of his right shoulder and a permanent partial disability.". There also appears to be no significant discussion in the proffered medical reports of the. effect on plaintiff's condition, if any, of prior and subsequent motor vehicle incidents. Thus, whether plaintiff has sustained a permanent consequential or significant limitation under § 5102(d), or anything else contemplated within the statute, proximately caused by the underlying incident, is a question of fact for the jury. Accordingly, it is hereby ORDERED, that defendants' motion for summary judgment is denied in its entirety; and it is further Page 3 of 4 15368912013 BAEZ, TOMAS vs. STOVER, ANTHONY Motion No. 01l8 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 02/17/2021 12:59 PM NYSCEF DOC. NO. 199 INDEX NO. 153689/2013 RECEIVED NYSCEF: 02/17/2021 ORDERED that plaintiff's cross-motion for summary judgment on the issue of liability is denied in its entirety. This constitutes the decision and order of the eourt. ~ZANNE 211012021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: 15368912013 BAEZ, TOMAS ~ CASE DISPOSED GRANTED 0 NON~FINAt. DENIED J. ADAMS, J.S.C. DISPOSITION - GRANTED IN PART SETTLE ORDER SUBMJT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT vs. STOVER, ANTHONY 4 of 4 D D OTHER REFERENCE Page4 of 4

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