Abassi v. Johnson
| Decision Date | 27 July 2020 |
| Docket Number | Index 034994/2018 |
| Citation | 2020 NY Slip Op 34646 (U) |
| Parties | LADAN ABASSI, Plaintiff, v. BONNIE C. JOHNSON and RALPH JOHNSON, Defendants. Motions Nos. 1, 2 |
| Court | New York Supreme Court |
DECISION/ORDER
HON SHERRI L. EISENPRESS, A.J.S.C.
The following papers, numbered 1-6, were read in connection with (Motion #1) Defendants Bonnie C. Johnson and Ralph Johnson's Notice of Motion for summary judgment and dismissal of the action, on the ground that the plaintiff cannot meet the serious injury threshold requirement as mandated by Insurance Law Sections 5104(a) and 5102(d); and (Motion #2) Plaintiff's un-opposed Notice of Cross-Motion for summary judgment as to liability against defendants:
PAPERS NUMBERED
NOTICE OF MOTION (#1)/AFFIRMATION IN SUPPORT/EXHIBITS A-E 1-2
NOTICE OF CROSS-MOTION (#2)/AFFIRMATION IN SUPPORT/EXHIBITS A-F 3-4
AFFIRMATION IN OPPOSITION (#1)/EXHIBITS A-D 5
AFFIRMATION IN REPLY (#1) 6
Plaintiff commenced the instant matter to recover damages for personal injuries arising out of a two car accident on August 17 2015, when the rear of her vehicle was struck by the front of Defendants' vehicle. Plaintiff testified that the accident occurred in the merge lane for Route 59 and Crosfield Avenue, in Rockland County. At the time of the accident, Plaintiff's vehicle was moving about five miles per hour and she testified that she had no warning before being struck in the rear.
Defendant Bonnie C. Johnson testified that the accident occurred at the yield sign at the intersection of Crosfiled Avenue and Route 59. She testified that she stopped behind the vehicle operated by Plaintiff while waiting to merge onto Route 59; that she looked back at oncoming traffic; she saw no cars coming; took her foot off the brake; and impacted Plaintiff's vehicle in front of her. She testified that she spoke to Plaintiff afterwards and apologized for hitting her car; that Plaintiff did not stop suddenly and that Plaintiff was not driving erratically.
The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a Court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v Citibank Corp.. et al.. 100 N.Y.2d 72 (2003) (citing Alvarez v Prospect Hosp., 68 N.Y.2d 320 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacaqnino v Gonzalez, 306 A.D.2d 250 (2d Dept 2003). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp. 95 N.Y.2d 124 (2000). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
It is well-settled that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle unless the operator of the moving vehicle can come forward with an adequate, non-negligent explanation for the accident. See Smith v. Seskin, 49 A.D.3d 628, 854 N.Y.S.2d 420 (2d Dept. 2008); Harris v. Ryder, 292 A.D.2d 499, 739 N.Y.S.2d 195 (2d Dept. 2002)]. Further, when the driver of an automobile approaches another from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. VTL § 1129(a) (); Taina v. Drewerv, 100 A.D.3d 740, 954 N.Y.S.2d 175 (2d Dept. 2012). Drivers must maintain safe distances between their cars and cars in front of them and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages. Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 (1st Dept. 1999).
In the matter at bar, the Plaintiff has met her prima facie burden upon summary judgment through her testimony that she was struck in the rear while traveling at a speed of 5 mph, while attempting to merge on Route 59. In response, Defendants have failed to demonstrate a triable issue of fact as they did not submit opposition to the liability motion and Ms. Johnson's testimony makes clear that there was not a non-negligent explanation for the subject occurrence. Accordingly, Plaintiff is entitled to summary judgment as to liability against defendants.
Plaintiff alleges that as a result of the accident, she sustained multiple disc bulges and herniations to her cervical spine neuralgia; ulnar nerve damage to plaintiff's right hand; and lumbar back pain. In support of their summary judgment motion, Defendants submit the affirmed medical report of defendants' orthopaedic expert, Steven Renzoni, M.D. In writing his report, Dr. Renzoni reviewed Plaintiff's medical records from Riverfield Family Health Center; Thomas St. John, M.D.; neurological evaluation by Patrick A. Roth; progress notes from Palisades Pulmonary and Medical P.C.; medical records of Jeff Pan, M.D.; MRI report dated 2/5/2016 of Plaintiff's cervical spine; medical records from Sports Care Physical therapy; medical reports of Sanford Fineman, M.D.; MRI report of cervical spine dated 9/6/2018; and medical records from MidJersey Orthopaedics.
Upon examination, Dr. Renzoni found normal ranges of motion in Plaintiff's cervical spine and lumbar spine, with negative orthopaedic testing. He also found negative Tinel and Phalen Tests to Plaintiff's right wrist/hand. Though Dr. Renzoni noted Plaintiff's complaints of numbness in the right little finger and some discomfort over the cubital tunnel on the right arm, he finds that to be unrelated to the accident. His diagnoses include resolved cervical and lumber sprain/strain and resolved right hand sprain/strain, all of which he finds to be causally related to the accident and not attributable to pre-existing conditions or prior injuries.
In opposition thereto, Plaintiff alleges that Defendants have failed to meet their prima facie burden in that Dr. Renzoni does not address the results of the MRI reports and that with respect to the allegation of ulnar nerve damage, while Dr. Renzoni states that Plaintiff suffers with unrelated cubital tunnel syndrome, he fails to state how he arrives at this diagnosis. Additionally, Plaintiff submits the affirmed reports of Sanford Fineman, M.D. dated December 7, 2017; the report of Michael O'Hara, DO, dated May 19, 2020; and the un-certified records of plaintiff's treating providers.
Dr. O'Hara, upon examination of Plaintiff on May 19, 2020, noted a positive Spurling Test, and found restricted range of motion in her cervical spine of forward flexion to 60 degrees (normal 80-90 degrees); extension to 40 degrees (normal 70 degrees); right rotation to 30 degrees on the right (normal 90 degrees); left rotation to 20 degrees (normal 90 degrees) and lateral flexion to 20 degrees on the right and 10 degrees on the left (normal 20-45 degrees.) Additionally, Dr. O'Hara found motor to be decreased +4/5, in the right triceps and right hand grasp. He noted severe spasm with trigger points in the right upper trapezius and upper and lower levator scapula. Dr. O'Hara opines that plaintiff suffered from accident-related herniated discs and cervical radiculopathy which he finds to be permanent and states that Plaintiff is a candidate for further treatment including injections and surgical intervention.
In reply, Defendants argue that Plaintiff has failed to submit evidence in admissible form, as Dr. O'Hara is only licensed to practice medicine in New Jersey, and as such, he cannot affirm his report and it must be submitted in affidavit form. They further submit that even if admissible Dr. O'Hara's report must be disregarded because he only examined her in response to the instant summary judgment motion. Lastly, they contend that Plaintiff's medical records...
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