Armstead v Leonick

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Armstead v Leonick 2021 NY Slip Op 33748(U) January 29, 2021 Supreme Court, Orange County Docket Number: Index No. EF001158-2020 Judge: Maria S. Vazquez-Doles 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. EF001158-2020 FILED: ORANGE COUNTY CLERK 02/02/2021 03:18 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/02/2021 At a term of the IAS Part of the Supreme Court of the State ofNew York, held in and for the County of Orange, at 285 Main Street, Goshen, New York 10924 on the 29 day of January, 2021. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE To commence the statutory time for appeals as ofright (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, on all parties. MARCUS E. ARMSTEAD, Plaintiff, -againstADAM A. LEONICK, Defendant. DECISION & ORDER INDEX EF00l 158-2020 Motion date: 10/1/2020 Motion Seq. #1 VAZQUEZ-DOLES, J.S.C. The following papers numbered 1 - 15 were read on plaintiffs motion for partial summary judgment on the issue of liability: Notice of Motion/Affirmation in Support/Exhibits 1-4.......................... 1-6 Affirmation in Opposition/Exhibits A-G.................................... 7-14 Affirmation in Reply..................................................... 15 Plaintiffs motion for summary judgment against defendant on the issue of liability and plaintiffs lack of comparative fault is GRANTED, and for summary judgment on the issue of plaintiffs injuries meeting the threshold requirements ofNew York State Insurance Law §5102 is DENIED. Background and Procedural History In this negligence action, plaintiff seeks to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on May 26, 2018. Plaintiff was traveling eastbound on Route 211 East and stopped at a yield sign in Town of Wallkill, New York when he was rear-ended by a vehicle operated by defendant. -1- Filed in Orange County [* 1] 02/02/2021 03:18:17 PM $0.00 1 of 5 Pg: 162 Bk:5140 Index:# EF001158-2020 Clerk: SW INDEX NO. EF001158-2020 FILED: ORANGE COUNTY CLERK 02/02/2021 03:18 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/02/2021 Plaintiff commenced this action by filing a Summons and Verified Complaint on February 12, 2020 (Exhibit 2 to moving papers). Defendant filed a Verified Answer with Affinnative Defenses, as well as discovery demands, on June 22, 2020. Liability Plaintiff asserts he is entitled to summary judgment on liability based on the rear-end collision, which establishes a prima facie case of negligence on the part of defendant (see Raimondo v. Plunkitt, 102 AD3d 851 [2d Dept 2013]). Plaintiff submits his own affidavit in which he states that he was stopped at a yield sign waiting for traffic to clear before merging onto the ramp, when he was rear-ended by defendant's vehicle (Exhibit 1). Here, defendant failed to oppose plaintiffs relief for summary judgment on liability in his papers, thus he did not raise a triable issue of fact (Grange v Jacobs, 11 AD3d 582 [2d Dept 2004]). Additionally, defendant made an admission in the police report, when he stated that "while traveling eastbound on State Route 211 East, vehicle 2 [Leonick] struck vehicle 1 [Armstead]" (Exhibit 1). On the issue of comparative negligence, the Court of Appeals has held that a plaintiff does not bear the burden of establishing the absence of his own comparative negligence in order to obtain partial summary judgment in a comparative negligence case (Rodriguez v. City ofNew York, 31 NY3d 312 [2018]). In Rodriguez, the Court of Appeals reversed the finding of the Appellate Division, First Department, that affirmed the denial of plaintiffs motion for partial summary judgment, on the basis that plaintiff failed to make a prima facie showing that he was free of comparative negligence (See, Rodriguez v. City ofNew York, 142 AD3d 778 [1 st Dept 2016]). The Court of Appeals held that Article 14-A of the Civil Practice Law & Rules provides -2- [* 2] 2 of 5 INDEX NO. EF001158-2020 FILED: ORANGE COUNTY CLERK 02/02/2021 03:18 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/02/2021 that comparative negligence does not bar recovery, but can act to diminish the amount of damages otherwise recoverable, in the proportion of the claimant's culpable conduct (Civ. Prac. Law & Rules §1411). Moreover, section 1412 provides that such culpable conduct shall be an affinnative defense to be pleaded and proved by the party asserting the same. The majority thus reasoned that to place the burden on the plaintiff to show an absence of comparative fault is inconsistent with the language of section 1412 (2018 NY Slip Op. at 3). "Comparative fault is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiffs prima facie cause of action for negligence ... but rather a diminishment of the amount of damages" (Id at 779). Further, plaintiff has established his prima facie entitlement to judgment as a matter of law by demonstrating that his car was struck from behind by the defendants' car. In opposition, the defendants failed to raise a triable issue of fact. Even if the plaintiff did, in fact, come to a sudden stop, "vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Shamah v Richmond County Ambulance Service, Inc., 279 AD2d 564 [2d Dept 2001]; see Vehicle and Traffic Law §1129[a]). Upon the foregoing it is ordered that plaintiffs motion for summary judgment against defendant on the issue of liability and plaintiffs lack of comparative fault is granted. Serious Injury Threshold Plaintiff claims that as a result of the May 26, 2018 accident, he suffered serious injuries under New York State Insurance Law §5102 and §5104, which caused significant, consequential and permanent limitation, inability to perform customary activities of his daily life, and impairment for at least 90 of the first 180 days after the accident. -3- [* 3] 3 of 5 FILED: ORANGE COUNTY CLERK 02/02/2021 03:18 PM NYSCEF DOC. NO. 25 INDEX NO. EF001158-2020 RECEIVED NYSCEF: 02/02/2021 Pursuant to Insurance Law §5102(d): "Serious injury" means a personal injury which results in death; dismembennent; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impainnent of a non-pennanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. Plaintiff relies on his Verified Bill of Particulars, dated August 6, 2020, on his claim for serious injuries. Armstead alleges to have suffered injuries, such as a fracture to the left ankle and herniations to the cervical and lumbar spine (Exhibit 3, ,r11). However, plaintiff fails to provide medical records that state his injuries were causally related to the accident. In opposition, Defendant attaches medical records that raise a triable issue of fact as to whether plaintiffs injuries were causally related to the accident. He submits a medical record, dated January 23, 2019,where plaintiff"was injured at work in 2001 and has been disabled since 2002 because of a back injury" (Exhibit A). Defendant also argues that this branch of the motion is premature because discovery, such as depositions, independent medical examinations, authorizations, and medical records, was not exchanged between the parties. This Court finds that plaintiff has not proven that his injuries meet the serious injury threshold requirements of Insurance Law §5102. Upon view of the foregoing, plaintiffs motion for summary judgment on serious injuries is denied, without prejudice, as it is premature at this jtmcture and discovery might lead to relevant evidence (see Skura v Wojtlowski, 165 AD3d 1196 [2d Dept 2018]). Conclusion Accordingly, it is hereby ORDERED that plaintiffs motion for partial swnmary judgment on the issue of liability -4- [* 4] 4 of 5 FILED: ORANGE COUNTY CLERK 02/02/2021 03:18 PM NYSCEF DOC. NO. 25 INDEX NO. EF001158-2020 RECEIVED NYSCEF: 02/02/2021 and plaintiffs lack of comparative fault is GRANTED; and it is further ORDERED that plaintiffs motion for summary judgment on plaintiff's injures meeting the threshold requirements of Insurance Law §5102 and §5104 is DENIED, without prejudice; and it is further ORDERED that plaintiffs motion limiting the issues to plaintiffs injuries and monetary damages shall be deemed as moot. The foregoing constitutes the Decision and Order of this Court. Dated: January29th, 2021 Goshen, New York TO: ENTER: Counsel of record via NYSCEF -5- [* 5] 5 of 5

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