Paneto v Clause

[*1] Paneto v Clause 2023 NY Slip Op 50643(U) Decided on June 28, 2023 Supreme Court, Richmond County Castorina Jr., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2023
Supreme Court, Richmond County

Natalie Paneto, Plaintiff,

against

Shirleen F. Clause, KEITH H. PRINTUP, JR. and JACOB RIVERA, Defendant.



Index No. 150047/2022

Attorney for the Plaintiff
Michael H. Bush, Esq.
CHELLI & BUSH
149 New Dorp Ln
Staten Island, NY 10306-3003
Phone:(718) 987-8444
E-mail: law@chelliandbush.com

Attorney for Defendants Clause & Printup
Christopher J Albee, Esq.
VOTTO & ALBEE, PLLC
30 Bay Street, 7th Floor
Staten Island, NY 10301
Phone: (718) 720-2877
E-mail: calbee@vcinslaw.com

Attorney for Defendant Rivera
Gunjan Persaud, Esq.
Kelly, Rode & Kelly, LLP
330 Old Country Rd, Suite 305
Mineola, NY 11501
Phone: (516) 739-0400
E-mail: gkishore@krklaw.com

Ronald Castorina, Jr., J.

The following e-filed documents listed on NYSCEF (Motion #001) numbered 40-54, 68-75; (Motion #002) numbered 55-63 and (Motion #003) numbered 64-67, 76 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on June 8, 2023, on Motion Sequence #001, Motion Sequence #002 and Motion Sequence #003, Motion Sequence #001, Motion Sequence #002, and Motion Sequence #003 are resolved and therefore, it is hereby,

ORDERED, that Defendant Rivera's motion seeking summary judgment on the issue of liability, and dismissal of the matter as to him is DENIED, with prejudice, and it is further;

ORDERED, that Defendant Rivera's motion seeking summary judgment on the issue of damages and any possible claim of economic loss, on the grounds that plaintiff did not sustain a "serious injury" as defined by Insurance Law § 5102 [d], and as required by Insurance Law § 5104 [a] is DENIED, with prejudice, and it is further;

ORDERED, that Defendants Clause's and Printup's motion seeking summary judgment on the issue of liability and dismissing the complaint against them is DENIED, with prejudice, and it is further;

ORDERED, that the Defendants Clause's and Printup's motion seeking summary judgment seeking and dismissing the matter as Plaintiff has failed to meet the "serious injury" threshold is DENIED, with prejudice, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Procedural History

On January 12, 2022, Plaintiff commenced this negligence action to recover for personal injuries allegedly sustained by the Plaintiff because of a two-vehicle motor vehicle accident in February 2021. Defendant JACOB RIVERA (hereinafter "RIVERA") filed Motion Sequence #001 on May 12, 2023, seeking (a) summary judgment on the issue of liability, and dismissal of the matter as to him on the grounds that no material issues of fact exist regarding any negligence and/or liability on his part and (b) summary judgment on the issue of damages and any possible claim of economic loss, on the grounds that plaintiff did not sustain a "serious injury" because of the accident as defined by Insurance Law § 5102 [d], and as required by Insurance Law § 5104 [a].

Defendants SHIRLEEN F. CLAUSE (hereinafter "CLAUSE") and KEITH H. PRINTUP, JR., (hereinafter "PRINTUP") filed Motion Sequence #002 on May 12, 2023, seeking summary judgment, and dismissing the complaint against them as they were not negligent for the accident. CLAUSE and PRINTUP further filed Motion Sequence #003 on May 12, 2023, seeking summary judgment and dismissing the matter as Plaintiff has failed to meet the "serious injury" threshold. Plaintiff filed opposition to all three motions on May 23, 2023. Reply on all motions was filed on June 7, 2023.

II. Facts

On February 15, 2021, Plaintiff was a passenger in the front seat of a vehicle driven by RIVERA. (NY St Cts Filing [NYSCEF] Doc No. 63 at pages 8-9). PRINTUP was operating a separate vehicle. (NY St Cts Filing [NYSCEF] Doc No. 62 at pages 10-11). Prior to the accident both RIVERA and PRINTUP were proceeding on Richmond Terrace, with RIVERA's vehicle trailing PRINTUP's vehicle. (see id at page 11). RIVERA alleges PRINTUP pulled over to the right and back into the roadway with no signal causing the impact (see id at page 16). PRINTUP contends he never pulled to the right but instead got T-boned while making a left turn with his blinker on. PRINTUP further maintains that he initiated that left turn while next to the double yellow line separating his lane from oncoming traffic. (NY St Cts Filing [NYSCEF] Doc No. 62 at pages 19-21). PRINTUP testified his mother, CLAUSE, the owner of the vehicle, was in the vehicle with him at the time of the accident (NY St Cts Filing [NYSCEF] Doc No. 48 at pages 9-10).

Approximately an hour after the accident Plaintiff sought medical attention. (NY St Cts Filing [NYSCEF] Doc No. 61 at pages 21). Plaintiff testified she sought medical attention because she was unable to move her neck, lean forward, or lift herself without pain and felt pain in her neck and upper back (see id at page 22). Approximately a week after the accident, Plaintiff subsequently complained to her primary care provider of pain in her neck and upper back and was referred to a chiropractor (see id at page 24-5). Plaintiff testified that she was treated by a chiropractor (see id at page 25).

Plaintiff followed up with a medical specialist group on March 18, 2021, complaining of frequent sharp spine pain that is aggravated when lifting head, lifting, and carrying objects and sitting (NY St Cts Filing [NYSCEF] Doc No. 69). Plaintiff further complained of neck pain radiating down to her arms and hands (see id). Testing revealed the Plaintiff to have range of motion issues and physical therapy was recommended (see id). After six months of physical therapy, Plaintiff was recommended to have nerve injections. (NY St Cts Filing [NYSCEF] Docs No. 69-70). Plaintiff alleges that she continues to suffer from chronic, severe, and continuing pain and physical limitations, most notably in the severe diminishment of the range of motion in her cervical spine and lumbar spine.

III. Summary Judgment on Liability

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (see Andre v. Pomeroy, 35 NY2d 361 [1974] citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 [1966]).

"A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018] quoting CPLR § 3212 [b]). "The moving party's submissions must show 'that there is no defense to the cause of action or that the cause of action or defense has no merit'" (see id). "To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact" (see id citing Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Stukas v. Streiter, 83 AD3d 18 [2d Dept 2011]).

"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party'" (see Shabat v State of New York, 177 AD3d 1009 [2d Dept, 2019] quoting Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Ortiz v. Varsity Holdings, LLC, 18 NY3d 335 [2011]).

RIVERA contends that PRINTUP pulled over to the right and then back into the roadway with no signal causing the impact. PRINTUP disputes RIVERA and contends that he never pulled to the right and got T-boned while making a left turn. A triable issue of fact exists as to the placement of the vehicles prior to their impact.

"On a motion for summary judgment, the moving party has the initial burden of coming forward with sufficient proof in admissible form to enable the court to determine that it is entitled to judgment as a matter of law" (see Rosa v. Gordils, 211 AD3d 1060 [2d Dept 2022] quoting Gesuale v Campanelli & Assoc., P.C., 126 AD3d 936 [2d Dept 2015]). "Defendants moving for summary judgment in a negligence action arising out of an automobile accident have the burden of establishing, prima facie, that they were not at fault in the happening of the accident" (see id quoting Elusma v Jackson, 186 AD3d 1326 [2d Dept 2020]; Nesbitt v Gallant, 149 AD3d 763 [2d Dept 2017]).

"There [may] be more than one proximate cause of an accident, and, [g]enerally, it is for the trier of fact to determine the issue of proximate cause" (see id quoting Choo v. Virginia Transp. Corp., 204 AD3d 743 [2d Dept 2022]; citing Shuofang Yang v. Sanacore, 202 AD3d 1120 [2d Dept 2022]). "[T]he issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts" (see id quoting Rodriguez v. Palacio, 199 AD3d 728 2d Dept 2021]).

RIVERA, CLAUSE, and PRINTUP have failed to demonstrate their prima facie entitlement to judgment as a matter of law. They have failed to establish that they were free from fault in the cause of the accident. The evidence submitted is insufficient to establish their prima facie entitlement to judgment as a matter of law as it failed to eliminate triable issues of fact regarding whether they were free from fault in the occurrence of the accident.

Accordingly, the summary judgment prong of Motion Sequence #001 seeking summary judgment on the issue of liability, and dismissal of the matter as to RIVERA on the grounds that no material issues of fact exist regarding any negligence and/or liability on his part is DENIED, with prejudice, and further,

Motion Sequence #002 seeking summary judgment and dismissing the complaint against CLAUSE and PRINTUP as they were not negligent for the accident is DENIED, with prejudice.

IV. Summary Judgment on Damages

Defendants have the prima facie burden of demonstrating that Plaintiff did not sustain a [*2]serious injury within the meaning of Insurance Law § 5102 [d] as a result of the accident (see Menjivar v. Capers, 214 AD3d 640 [2d Dept 2023] citing Toure v. Avis Rent a Car Sys., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992]).

"Serious injury" means a personal injury which results in death; dismemberment; 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 impairment of a non-permanent 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. (see CLS Ins § 5102 [d])

Defendants must submit competent medical evidence establishing, prima facie, that Plaintiff did not sustain serious injuries under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 [d] (see id citing Zennia v. Ramsey, 208 AD3d 735 [2d Dept 2022]; Reddick v. Hickey, 197 AD3d 581 [2d Dept 2021]; Singleton v F & R Royal, Inc., 166 AD3d 837 [2d Dept 2018]; Nuñez v Teel, 162 AD3d 1058 [2d Dept 2018]).

Applying what could be gleaned from the legislative intent, the Court of Appeals, analyzing the word "significant," wrote that "the word 'significant' as used in the statute pertaining to 'limitation of use of a body function or system' should be construed to mean something more than a minor limitation of use. We believe that a minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute" (see Grossman v. Wright, 268 AD2d 79 [2d Dept 2000] quoting Licari v. Elliott, 57 NY2d 230 [1982]).

"[T]he legislative intent of the 'no-fault' legislation was to weed out frivolous claims and limit recovery to major or significant injuries. In that regard, summary judgment should be granted in cases where the plaintiff's opposition is limited to 'conclusory assertions tailored to meet statutory requirements'" (see id quoting Lopez v. Senatore, 65 NY2d 1017 [1985]; citing Carroll v. Jennings, 264 AD2d 494 [2d Dept 1999]).

Plaintiff testified at her deposition that following the accident she was unable to move her neck, lean forward or lift herself without pain. (NY St Cts Filing [NYSCEF] Doc No. 61 at 22). Plaintiff further testified that prior to the accident she had never injured her neck or upper back (see id at 26). Plaintiff was sent for an MRI, which she contends showed some damage and required continued chiropractic adjustments (see id at 28).

Plaintiff's March 2, 2021, cervical spine x-ray found to "a slight reversal of the normal lordotic curvature of the cervical spine" (NY St Cts Filing [NYSCEF] Doc No. 71). Plaintiff's July 28, 2021, MRI determined Plaintiff to have a "[m]ild spinal curvature with mild straightening of lordosis" (see id). Plaintiff's July 30, 2021, reported the Plaintiff to have a "[s]light spinal curvature with mild straightening of kyphosis" (see id).

On March 2, 2021, Plaintiff sought treatment from Orlin & Cohen Medical Specialist Group (herein after referred to as Orlin) complaining of upper back pain for the last six months following a motor vehicle accident (NY St Cts Filing [NYSCEF] Doc No. 69). Plaintiff reported, "Over the past six months, the intensity of her pain has been moderate to severe rating 8-9/10 on the pain scale. Pain is nearly constant in nature with symptoms worsening in no typical pattern. [*3]Pain is described as burning, sharp, pressure-like, dull/aching. Patient experiences weakness in her lower extremities. Pain is increased while lying down, standing, sitting, walking, exercise, relaxation." (see id). Plaintiff was assessed spondylosis without myelopathy or radiculopathy, cervical region, and cervicalgia [cervical pain along with a concern for carpal tunnel syndrome and neck pain] (see id).

On August 2, 2021, Plaintiff to Orlin and presented with "mainly axil pain with impairment in AFLs [Activities of Daily Living] and functionality pointing to facet joints. The pain has not responded to conservative car, including medications, stretching, as well as active modalities, such as physical therapy. Imaging studies as well as physical exam findings corroborate the symptomatology and point to the facet joints" (see id).

Plaintiff alleging to neck pain radiating to the right arm, right forearm, right wrist, and right hand sought treatment by NY Chiropractic & Physical Therapy on October 8, 2021 (NY St Cts Filing [NYSCEF] Doc No. 70). Plaintiff reported, "[t]he intensity of this complaint is moderate; meaning it inhibits activity. This complaint is frequent or occurs 50% to 80% of the time. On a scale from 0 to 10, with 10 being the highest possible level of pain, patient graded the pain as 7." (see id). Plaintiff was diagnosed with, segmental and somatic dysfunction of the cervical region, segmental and somatic dysfunction of the thoracic region, radiculopathy of the cervical region, and pain in the thoracic spine (see id). Plaintiff testified that her chiropractic treatment is ongoing. (NY St Cts Filing [NYSCEF] Doc No. 71).

Defendant's independent medical examination (IME) demonstrated Plaintiff's restricted range of motion issues (NY St Cts Filing [NYSCEF] Doc No. 50). The IME found the Plaintiff "did exhibit cervical spine decreased range of motion" (see id).

Plaintiff testified, regarding the impairment of her activities of daily living:

Q:Tell me how this accident has affected your life; how has it changed?A:I have issues sitting for long periods of time. I'm an artist, so it involves me sitting upright and then looking down with my neck. I get pain behind my neck. That's my livelihood; art is my livelihood. It's how I started to make money right as the accident happened. (NY St Cts Filing [NYSCEF] Doc No. 61 at pages 32-33, lines 19-25, 2-3).Q: Have you sold any artwork since the accident?A: I have not. I haven't been able to do the art because of the pain.Q: You have not done any art since the accident?A: No.Q: Any other ways this accident has affected your life? Not that that's not enough, but I have to ask the question.A: Doing normal household chores is a little difficult such as laundry. Any lifting is very difficult for me. I have very long hair, and it's very difficult for me to hold my arms up above my head for long periods of time because I have pain in my neck. I don't do updos often because of the pain.Q: Do you have any devices at home to assist you with the pain like a massager or heat pack or something?A: Yes. I have a heat pack.Q: Anything else?A: No. Nothing like that.Q: Do you use the heating pad?A: Yes. I do.Q: How often?A: I would say probably every night for pain. (see id at pages 33-34, lines 11-25, 2-16).

"Serious injury is defined by condition-specific categories in Insurance Law § 5102 [d], and includes, inter alia, a medically-determined injury or impairment of a nonpermanent 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 90 days during the 180 days immediately following the occurrence of the injury or impairment" (see Damas v Valdes, 84 AD3d 87 [2d Dept 2011] citing Toure v. Avis Rent a Car Sys., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992]). "[T]here must be curtailment of usual activities to a great extent, rather than some slight curtailment" (see id citing Ellithorpe v. Marion, 34 AD3d 1195 [4th Dept 2006]).

Plaintiff's testimony provided in her January 5, 2023, deposition, provides that she has been unable to perform substantially all the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following her injury in the car accident on February 15, 2021. At the time of her deposition, almost two years after her injury, Plaintiff was unable to sit for long periods of time, which prevented her as an artist from creating art, due to the requirement to sit upright and look down with her neck. Plaintiff further testified to difficulty in doing normal household chores such as laundry as well as altering her grooming habits due to the pain involved in maintaining her preferred coiffure. It is clear to this court that Plaintiff raises triable issues of fact as to whether she sustained a serious injury under the 90/180—day category of Insurance Law § 5102 [d] (see Bracco v Zuhir, 123 AD3d 753 [2d Dept 2014]; Preston v Ziane, 120 AD3d 647 [2d Dept 2014]).

Moreover, Plaintiff's X-Ray and MRI results indicate "a slight reversal of the normal lordotic curvature of the cervical spine", a "[m]ild spinal curvature with mild straightening of lordosis", and a "[s]light spinal curvature with mild straightening of kyphosis" (NY St Cts Filing [NYSCEF] Doc No. 71). Cervical range of motion testing of Plaintiff by Orlin during their initial evaluation on March 18, 2021 revealed serious range of motion issues (NY St Cts Filing [NYSCEF] Doc No. 69). Defendant's independent medical examination (IME) on February 3, 2023 confirmed Plaintiff's restricted range of motion issues (NY St Cts Filing [NYSCEF] Doc No. 50). The IME further found the Plaintiff "did exhibit cervical spine decreased range of motion" (see id).

Defendants, RIVERA, CLAUSE, and PRINTUP did not meet their prima facie burden of showing that because of the accident, the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 [d].

Accordingly, the summary judgment prong of Motion Sequence #001 seeking summary judgment on the issue of damages and any possible claim of economic loss, on the grounds that plaintiff did not sustain a "serious injury" because of the accident as defined by Insurance Law § 5102 [d], and as required by Insurance Law § 5104 [a] is DENIED, with prejudice, and further,

Motion Sequence #003 seeking summary judgment and dismissing the matter as Plaintiff has failed to meet the "serious injury" threshold is DENIED, with prejudice.

V. Decretal Paragraphs

It is hereby ORDERED that Defendant Rivera's Motion Sequence #001 seeking summary judgment on liability and summary judgment as Plaintiff has failed to meet the "serious injury" threshold is DENIED, with prejudice, and it is further;

ORDERED, that the Defendants Clause's and Printup's Motion Sequence #002 seeking summary judgment on the issue of liability and dismissing the complaint against them isDENIED, with prejudice, and it is further;

ORDERED, that the Defendants Clause's and Printup's Motion Sequence #003 seeking summary judgment and dismissing the matter as Plaintiff has failed to meet the "serious injury" threshold is DENIED, with prejudice, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

Dated: June 28, 2023
Staten Island, New York
E N T E R,
HON. RONALD CASTORINA, JR.
JUSTICE OF THE SUPREME COURT