Balducci v. Velasquez

• Decision Date: 07 February 2012
• Citation: 92 A.D.3d 626,2012 N.Y. Slip Op. 00921,938 N.Y.S.2d 178
• Parties: Charles H. BALDUCCI, et al., respondents-appellants, v. George VELASQUEZ, et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00921

92 A.D.3d 626

938 N.Y.S.2d 178

Charles H. BALDUCCI, et al., respondents-appellants,

v.George VELASQUEZ, et al., appellants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 7, 2012.

Gallo, Vitucci & Klar, New York, N.Y. (Yolanda Ayala and Kimberly A. Ricciardi of counsel), for appellant-respondent George Velasquez.

Connors & Connors, P.C., Staten Island, N.Y. (Leonard A. Robusto of counsel), for appellants-respondents Abbas Behnambakhsh and Roxana Behnambakhsh.

Verrill & Goodstein, Jericho, N.Y. (Thomas Torto, Jason Levine, and Crafa & Sofield [Thomas R. Sofield], of counsel), for appellant-respondent Marie Decanio.Louis Grandelli, P.C., New York, N.Y. (Ari Lieberman and Leigh David Eskenasi of counsel), for respondents-appellants.

WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the defendant George Velasquez appeals from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated November 5, 2010, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him on the ground that the plaintiff Charles H. Balducci did not sustain a serious injury within the meaning of Insurance Law § 5102(d), the defendants Abbas Behnambakhsh and Roxana Behnambakhsh separately appeal, and the defendant Marie Decanio separately appeals, from so much of the same order as denied their respective cross motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Charles H. Balducci did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and the plaintiffs cross-appeal from so much of the same order as denied their cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the plaintiffs' cross motion for summary judgment on the issue of liability is granted; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendants appearing separately and filing separate briefs.

This action arises out of three separate car accidents on Staten Island which each allegedly caused the plaintiff Charles H. Balducci (hereinafter the injured plaintiff) to sustain serious injuries within the meaning of Insurance Law § 5102(d). The first accident occurred on August 20, 2005, on Targee Street at or near its intersection with Narrows Road North, when the injured plaintiff was stopped at a red light and a vehicle owned and operated by the defendant George Velasquez struck the injured plaintiff's vehicle from behind. The second accident occurred on May 25, 2007, on Amboy Road at its intersection with Chesterton Avenue, when a vehicle operated by the defendant Roxana Behnambakhsh and co-owned by the defendant Abbas Behnambakhsh (hereinafter together the Behnambakhshes), rear-ended the injured plaintiff's vehicle. The third accident occurred on October 23, 2007, on Forest Avenue at its intersection with Richmond Hill Road, when a vehicle owned and operated by the defendant Marie Decanio rear-ended the injured plaintiff's vehicle as it was stopped at a red light.

Although we affirm so much of the order as denied the motion and cross motions of the respective defendants for summary judgment dismissing the complaint, we do so on grounds other than those relied upon by the Supreme Court. Contrary to the holding of the Supreme Court, the respective defendants failed to meet their prima facie burdens of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accidents ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

As to the first accident, Velasquez moved for summary judgment and relied upon, inter alia, the affirmed medical report of Dr. Robert Israel, Velasquez's examining orthopedic surgeon. Dr. Israel examined the injured plaintiff on December 3, 2009, and during cervical spine testing reported finding significant limitations. Accordingly, Velasquez failed to sustain his prima facie burden of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( see Taylor v. Taylor, 87 A.D.3d 1129, 930 N.Y.S.2d 32; Astudillo v. MV Transp., Inc., 84 A.D.3d 1289, 923 N.Y.S.2d 722; Rhodes v. Stoddard, 79 A.D.3d 997, 912 N.Y.S.2d 908; Kharzis v. PV Holding Corp., 78 A.D.3d 1122, 912 N.Y.S.2d 114). Moreover, while Dr. Israel opined that the injured plaintiff's disability was causally related to the subsequent accidents and not to the first one, he provided no foundation for that conclusion ( see Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282; Bengaly v. Singh, 68 A.D.3d 1030, 890 N.Y.S.2d 352; Buono v. Sarnes, 66 A.D.3d 809, 888 N.Y.S.2d 79; see also Borras v. Lewis, 79 A.D.3d 1084, 913 N.Y.S.2d 577; Landman v. Sarcona, 63 A.D.3d 690, 880 N.Y.S.2d 168; Powell v. Prego, 59 A.D.3d 417, 872 N.Y.S.2d 207). Since Velasquez failed to establish his prima facie entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the plaintiffs' opposition papers, and the Supreme Court properly denied his motion ( see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

The Supreme Court also properly denied the separate cross motions of the Behnambakhshes and Decanio. The medical report of Dr. George V. DiGiacinto, submitted by the Behnambakhshes, was unaffirmed and, thus, in inadmissible form ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Lively v. Fernandez, 85 A.D.3d 981, 925 N.Y.S.2d 650; Pierson v. Edwards, 77 A.D.3d 642, 909 N.Y.S.2d 726; Vasquez v. John Doe # 1, 73 A.D.3d 1033, 905 N.Y.S.2d 188). Furthermore, the admissible evidence relied upon by the Behnambakhshes did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the second accident, and the evidence relied upon by Decanio similarly did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the third accident ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Olic v. Pappas, 47 A.D.3d 780, 849 N.Y.S.2d 174). Since the Behnambakhshes and Decanio failed to establish their prima facie entitlement to judgment as a matter of law, it is unnecessary to consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact ( see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

As a general matter, the operator of a motor vehicle has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ( see Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710; Johnson...