Bernier v. Torres
| Decision Date | 08 January 2010 |
| Docket Number | Motion Cal. No: 5,Motion Seq. No: 1,Index No: 20671/08 |
| Citation | 2010 NY Slip Op 32207 |
| Court | New York Supreme Court |
| Parties | MARIE Y. BERNIER, Plaintiff, v. OSCAR M. TORRES, Defendant. |
The following papers numbered 1 to 13 read on this motion by plaintiff Marie Y. Bernier for an order, pursuant to CPLR § 3212, granting plaintiff summary judgment on liability; and on this cross motion by defendant Oscar M. Torres, for an order, pursuant to CPLR § 3212, granting defendant summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury, as defined by NY Insurance Law §5102(d).
Upon the foregoing papers, it is hereby ordered that the motion and cross-motion are disposed of as follows:
This is a personal injury action in which plaintiff Marie Y. Bernier ("plaintiff") seeks to recover damages for injuries sustained by her as a result of a motor vehicle accident that occurred on November 4, 2007, when her vehicle was hit in the rear by the vehicle owned and operated by defendant Oscar M. Torres ("defendant"), on the Southern State Parkway at its intersection with Exit 20S in Nassau County, New York. Plaintiff now moves for partial summary judgment on liability, contending that the accident occurred solely because of defendant's negligence. Defendant cross moves for dismissal on the ground that plaintiff did not sustain a serious injury pursuant to the Insurance Law.
It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See, Zuckerman v. City of New York, supra.
"A rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on 'that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision' (citations omitted)." Lampkin v. Chan, 68 A.D.3d 727 (2nd Dept. 2009); see, Oguzturk v. General Elec. Co., 65 A.D.3d 1110 (2nd Dept. 2009); Ramirez v. Konstanzer, 61 A.D.3d 837 (2nd Dept. 2009); Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D.3d 368 (2nd Dept. 2006); Johnston v. Spoto, 47 A.D.3d 888 (2nd Dept. 2008); Milskiy v Solanky, 8 A.D.3d 353 (2nd Dept.2004); Barile v. Lazzarini, 222 A.D.2d 635 (2nd Dept. 1995); see also McGregor v Manzo, 295 A.D.2d 487 (2nd Dept. 2002); Gambino v City of New York, 205 A.D.2d 583 (2nd Dept.1994); Power v. Hupart, 260 A.D.2d 458 (2nd Dept. 1999); Caputo v. Schaumeyer, 252 A.D.2d 512 (2nd Dept. 1998); Danza v. Longieliere, 256 A.D.2d 434 (2nd Dept. 1998). The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision because he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or some other reasonable cause. Leal v. Wolff, 224 A.D.2d 392 (2nd Dept. 1996). This is because he or she is in the best position to explain whether the collision was due to a reasonable, non-negligent cause. Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83, 85 (2nd Dept. 1966). If the operator cannot come forward with any evidence to rebut the inference of negligence, the moving party may properly be awarded judgment as a matter of law on the issue of liability. McGregor v Manzo, supra; see also Leal v Wolff, 224 A.D.2d 392 (2nd Dept. 1996); Barile v Lazzarini, 222 A.D.2d 635 (2nd 1995); Lopez v. Minot, 258 A.D.2d 564 (2nd Dept. 1999).
Here, plaintiff made the requisite prima facie showing of her entitlement to summary judgment, by the submission of her deposition testimony and that of defendant, who admitted that his vehicle struck plaintiff's vehicle in the rear while both vehicles were exiting, following a stop for a stop sign, the exit ramp to Grand Avenue from Southern State Parkway. Plaintiff's vehicle had gone past the stop sign and was on Grand Avenue and defendant was pulling his vehicle onto Grand Avenue. Once the moving party makes a prima facie showing of entitlement to summary judgment in their favor, it is incumbent upon the opposing party to come forth with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact. Chalasani v. State Bank of India, New York Branch, 283 A.D.2d 601 (2nd Dept. 2001); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Pagan v. Advance Storage and Moving, 287 A.D.2d 605 (2nd Dept. 2001); Gardner v. New York City Transit Authority, 282 A.D.2d 430 (2nd Dept. 2001).
Defendant, rather than submitting opposition to the motion, instead cross moves for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury. Section 5102(d) of the Insurance Law, in pertinent part, defines a "serious injury" as:
a personal injury which results in...significant disfigurement;...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 party from performing substantially all of the material acts which constitute such person customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
The issue of whether plaintiff sustained a serious injury is a matter of law to be determined in the first instance by the court. See Licari v. Elliott, 57 N.Y.2d 230 (1982). The burden is on the defendant to make a prima facie showing that plaintiff's injuries are not serious. Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 (2002). By submitting the affidavits or affirmations of medical experts, who, through objective medical testing, conclude that plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d), a defendant can meet his or her prima facie burden. See Margarin v. Krop, 24 A.D.3d 733 (2nd Dept. 2005); Karabchievsky v. Crowder, 24 AD3d 614 (2nd Dept. 2005). The threshold question in determining a summary judgment motion on the issue of serious injury is the sufficiency of the moving papers, with consideration only given to opposing papers once defendants, as the movants, make a prima facie showing that plaintiff did not sustain a serious injury. Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 (2002).
Plaintiff claims that, as a result of the accident, she sustained injury to her right shoulder, in the form of an impingement syndrome; partial thickness tearing of the rotator cuff intra-articularly; posterior SLAP lesion requiring Arthroscopy of the right shoulder and subacromial space; partial distal claviculectomy and intra-articular debridement of the rotator cuff tearing and SLAP lesion posteriorly; disc herniations and bulges and hypertrophy of the bilateral facet joints. In support of his motion, defendant submitted the affirmed medical report of Dr. Leon Sultan ("Sultan"), an orthopedic surgeon, who examined plaintiff on August 25, 2009. With respect to her shoulder, Dr. Sultan stated:
Range of motion testing of the right shoulder has been obtained with accurate visual measurements. Right shoulder abduction and forward elevation is to 175° (normal 179-180°), internal rotation is complete and external rotation is to 45° (normal 40-50°). Abduction is to 45° (normal 40-50°) and posterior extension is to 40° (normal 40-45°). Equal range of motion finding are noted on the opposite side. Theright shoulder impingement is negative as is the Hawkin's test and the drop arm test.
Dr. Sultan also recited normal findings for his testing of plaintiff's cervical and thoracolumbar spine, and concluded:
This woman claims multiple injuries as described above following the occurrence of 11/4/07. Today's orthopedic and orthopedic neurological examination in regard to her right shoulder, cervical spine and thoracolumbar spine reveals that she is orthopedically stable and neurologically intact. Today's examination does not confirm any ongoing causally related orthopedic or neurological impairment in regard to the occurrence of 11/4/07. From a clinical point of view, there is no correlation between today's examination and the abovedescribed multiple MRI readings.
Defendant also submitted plaintiff's deposition testimony in which she conceded that the course of treatment following her accident consisted primarily of three months of physical therapy; two months of treatment beginning in January 25, 2008 by Dr. Berkowitz, an orthopedic surgeon, who performed arthoscopic surgery on plaintiff's right shoulder on February 25, 2008; was last treated by Dr. Francois, an internist,...
To continue reading
Request your trial