Cividanes v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DAVID FRIEDMAN
• Citation: Cividanes v. City of New York, 2012 NY Slip Op 2179, 95 A.D.3d 1, 940 N.Y.S.2d 619 (N.Y. App. Div. 2012)
• Decision Date: 22 March 2012
• Parties: Kendra CIVIDANES, Plaintiff–Respondent, v. CITY OF NEW YORK, Defendant,Manhattan and Bronx Surface Transit Operating Authority, et al., Defendants–Appellants.

2012 N.Y. Slip Op. 02179

940 N.Y.S.2d 619

95 A.D.3d 1

Kendra CIVIDANES, Plaintiff–Respondent,

v.CITY OF NEW YORK, Defendant,Manhattan and Bronx Surface Transit Operating Authority, et al., Defendants–Appellants.

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

March 22, 2012.

Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for appellants.

Burns & Harris, New York (Blake G. Goldfarb and Judith F. Stempler of counsel), for respondent.

DAVID FRIEDMAN, J.P., JOHN W. SWEENY, JR., ROLANDO T. ACOSTA, DIANNE T. RENWICK, SHEILA ABDUS–SALAAM, JJ.

RENWICK, J.

In this action to recover damages for personal injuries, plaintiff alleges that she was injured when she stepped into a hole and fell after alighting from a bus owned and operated by defendants. The court below properly rejected defendants' al legations that the No–Fault Insurance Law, which would have required plaintiff to establish that she sustained a serious injury as a result of the accident, applies to this matter. The controlling precedent is Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211, 644 N.Y.S.2d 133, 666 N.E.2d 1046 (1996), which holds that for the No–Fault Law to apply, the vehicle must be the proximate cause of the plaintiff's injuries.

This dispute arises from an accident that occurred on the morning of May 28, 2008. Plaintiff was allegedly injured as she exited a bus owned and operated by defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants). Plaintiff testified at a General Municipal Law § 50–h hearing that as she exited the rear of the bus, she “stepped off the last step into a hole and fell.” She stated that the bus did not pull completely into the bus stop; she was let out “in front of the bus stop.” The bus continued on its route. She described the hole into which she stepped and fell as being “pretty far away from the curb;” while the front of the bus “pulled about a foot away from the curb,” the “back of the bus was on an angle, so it was further away from the curb.”

At the scene, plaintiff's left ankle started to swell. An ambulance arrived, and took her to Jacobi Medical Center's emergency room, where the staff took x-rays of her left ankle, but found no break or fracture. They wrapped the ankle with a bandage, gave her crutches and told her to visit her primary care doctor. Plaintiff was released the same day. The following day, plaintiff went to the emergency room of Montefiore Medical Center by taxi, because the pain in her ankle was “too much with the Ibuprofen.” At Montefiore, they prescribed a higher dose of Ibuprofen, rewrapped her ankle with an air cast and discharged her. She returned to Montefiore the same day, and was prescribed Percocet. Her primary care physician referred her to an orthopedist, who prescribed a new type of pain medicine and physical therapy, and sent her for an MRI. Plaintiff testified that she was confined to her home “[m]ostly the first week” and confined to her bed the “first few days, about two or three days.”

After plaintiff commenced this action, alleging that defendants were negligent in failing to provide a safe and adequate place for her to enter and exit the bus, defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants) moved for summary judgment, arguing that plaintiff did not sustain a serious injury under Insurance Law § 5102(d). In support of their motion, defendants submitted affidavits from an orthopedist and a neurologist who each conducted an independent physical examination of plaintiff. Their individual examination of the left knee similarly revealed normal range of motion. The MRI of plaintiff's left ankle, as reviewed by defendants' radiologist, did not reveal tendinopathy, ligamentous injury or fracture. Because both the orthopedist and neurologist diagnosed plaintiff as having suffered a resolved sprained left ankle, they similarly opined that plaintiff had not suffered a serious injury as a result of the accident.

In opposition, plaintiff argued that she was injured after she exited the bus and therefore was not a “covered person” pursuant to the No–Fault who has to satisfy the “serious injury” threshold. Plaintiff further argued that defendants' liability did not arise from its “use and operation” of the bus, but “rather from its duty to provide plaintiff with a safe place” to alight from the bus. Alternatively, plaintiff argued that if the threshold statute were to apply, defendants failed to meet their burden on summary judgment. Finally, plaintiff argued that, if defendants were found to have met their burden, she raised a triable issue of fact by the submission of objective medical evidence. Essentially, plaintiff submitted the affirmed report of an orthopedist who examined her twelve days after the fall and an MRI of her left knee, dated June 17, 2008, which revealed some swelling. The orthopedist's examination revealed moderate limitations in the range of motion of plaintiff's left ankle.

The court rejected defendants' argument that plaintiff's accident arose from the use or operation of the bus so as to implicate the No–Fault Law. The court reasoned that “[t]he accident did not occur because of the inherent nature of the bus, it occurred outside the bus; the bus itself did not produce the injury.” The court further noted that defendants did not address whether, as a common carrier, they breached their duty to stop the bus at a place where plaintiff could safely disembark. Accordingly, the court denied defendants' motion, prompting this appeal.

One of the main features of the No–Fault Insurance Law is that it limits the right to bring a personal injury action for damages arising out of an automobile accident (Insurance Law § 5104[a] ). On the one hand, “first-party benefits,” also referred to as basic economic loss coverage, are available to a “covered person” regardless of fault ( id.).¹ on the other hand, in exchange for rECEIVING SUCH NO-FAULT BENEFITS, a person injured in an automobile accident may bring a plenary action in tort to recover for noneconomic loss but only if he or she has suffered a “serious injury” within the meaning of the No–Fault Law ( Oberly v. Bangs Ambulance, 96 N.Y.2d 295, 296–297, 727 N.Y.S.2d 378, 751 N.E.2d 457 [2001] ).

In this case, where plaintiff alleges only non-economic loss, it cannot be seriously disputed that she did not suffer a serious injury as defined by Insurance Law § 5102(d). Defendants established lack of serious injury by submitting, inter alia, the affirmed reports of an orthopedist and a neurologist, who both examined plaintiff, found normal ranges of motion on her left ankle, and reached the same conclusion that she sustained a resolved ankle sprain ( see Beatty v. Miah, 83 A.D.3d 610, 922 N.Y.S.2d 323 [2011] ). In response, plaintiff failed to present any objective findings that she sustained any serious injury. While she submitted an MRI report, that report did not indicate that anything was wrong with her ankle, other than some swelling, which is not a serious injury. In addition, plaintiff failed to submit a recent examination finding limitations in range of motion, after defendants' expert found none ( see Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 922 N.Y.S.2d 381 [2011] ). Finally, plaintiff's testimony refuted any 90/180–day claim, since she testified that she was confined to her home “[m]ostly the first week” and confined to her bed the “first few days, about two or three days” ( see Lopez v. Eades, 84 A.D.3d 523, 921 N.Y.S.2d 858 [2011] ).

Accordingly, the question before us is whether the motion court properly found that the serious injury threshold was not at issue because plaintiff's personal injuries did not arise out of an automobile accident within the meaning of the No–Fault Law. The seminal case on this issue is Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211, 644 N.Y.S.2d 133, 666 N.E.2d 1046 (1996). In Walton, the Court of Appeals made clear that, under the plain language of the statute, the essential question in determining whether a given injury is covered by the No–Fault Law is whether the plaintiff's injury arises out of the “use or operation” of the automobile ( id. at 213, 644 N.Y.S.2d 133, 666 N.E.2d 1046). The statute, however, did not define “use or operation.” In Walton, the issue arose within the context of No–Fault, basic economic benefits. Such benefits under No–Fault Insurance Law, the Court held, are premised on the happening of an automobile accident. That is, the vehicle must be the proximate cause of the plaintiff's injury ( id. at 214–215, 644 N.Y.S.2d 133, 666 N.E.2d 1046).

The Walton Court explained that the proximate clause limitation was needed to circumscribe the benefits of the No–Fault Law in line with that law's purposes. “Its purposes were to remove the vast majority of claims arising from vehicular accidents from the sphere of common-law tort litigation, and to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of such accidents” ( id. at 214, 644 N.Y.S.2d 133, 666 N.E.2d 1046). The No–Fault Law assures that every auto accident victim would be compensated promptly without regard to fault, that “the vast majority of auto accident negligence suits” would be eliminated, “freeing our courts for more important tasks,” and that “substantial premium savings [would accrue] to all New York motorists” ( Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 562, 693 N.Y.S.2d 493, 715 N.E.2d 495 [1999] [internal quotation marks and citations omitted] ). Similarly, the No–Fault Law avoids litigation costs including the burden of attorneys' fees that cut into the amounts ultimately received by accident victims ( see Prosser and Keeton, Torts § 84, at 600–607 [5th ed.] ).

The No–Fault Law works to ameliorate these problems, but “not all injuries in and...