Daliendo v. Johnson

• Decision Date: 26 June 1989
• Citation: 147 A.D.2d 312,543 N.Y.S.2d 987
• Parties: Lee S. DALIENDO, et al., Appellants, v. Neal F. JOHNSON, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 987

543 N.Y.S.2d 987

147 A.D.2d 312

Lee S. DALIENDO, et al., Appellants, v. Neal F. JOHNSON, et al., Respondents.

Supreme Court, Appellate Division Second Department.

June 26, 1989.

Shapiro, Baines, Saasto & Shainwald, Mineola (Paul F. McAloon, of counsel), for appellants.

Dinkes, Mandel, Dinkes & Morelli, New York City (George Schwarz, of counsel), for respondents.

Before BRACKEN, J.P., and KUNZEMAN, RUBIN and SPATT, JJ.

SPATT, Justice.

In this negligence action, we are called upon to determine whether a plaintiff may defeat a motion for summary judgment grounded on the plaintiff's alleged failure to satisfy the threshold requirement of "[s]erious injury" as defined in Insurance Law § 5102(d) by relying on injuries suffered subsequent to the automobile accident involving the defendants. We hold that the injuries suffered in a subsequent accident may be considered in determining whether the plaintiff has sustained "[s]erious injur[ies]" provided that the plaintiff establishes, prima facie, a causal relationship between the injuries sustained in the two accidents.

The plaintiff Lee S. Daliendo's affidavit and that of a physician submitted in opposition to the cross motion of the defendants Adelphi Taxi Corp. and Ann Service Corp. for summary judgment stated that as a result of a concussion suffered in the first accident involving these defendants, Mr. Daliendo suddenly blacked out while driving three days later, crashed his vehicle and sustained serious injuries. This evidence constituted a sufficient showing of a causal connection between the injuries sustained in the two accidents to withstand the cross motion for summary judgment. Since the plaintiffs have demonstrated triable issues of fact with regard to the issue of "[s]erious injur[ies]", the order granting summary judgment dismissing the complaint must be reversed.

I

The complaint and verified bill of particulars allege that on May 7, 1983, the defendant Neal F. Johnson, while operating an automobile owned by the defendants Adelphi Taxi Corp. and Ann Service Corp., caused his vehicle to collide with a vehicle driven by the plaintiff Lee S. Daliendo and owned by his mother, the plaintiff Grace M. Daliendo. The complaint alleges that Lee S. Daliendo suffered injuries in this accident, and "[t]hat as a result of the negligence of the defendants * * * and the injuries sustained as a result thereof * * * was caused to be involved in another accident, and as a result of same, he suffered further and additional injuries".

The bill of particulars specifies the injuries to Lee S. Daliendo and asserts the following theory of fault and of the damages arising from the two accidents:

"The plaintiff was involved in, and injured in, two motor vehicle collisions. The injuries inflicted on plaintiff in the first collision by reason of negligence of the defendant caused plaintiff to be involved in, and further injured in, a second motor vehicle collision".

The plaintiffs moved for summary judgment on the issue of fault in the happening of the May 7, 1983, accident, and submitted affidavits from the plaintiff Lee S. Daliendo and his passenger Tony Aleman. The affidavits averred that on May 7, 1983, Lee S. Daliendo was driving his mother's Toyota Celica, and Tony Aleman was in the front passenger's seat. While stopped for approximately 30 seconds on First Avenue in Manhattan at the intersection of 37th Street for a red light, the vehicle was struck in the rear by a taxicab owned by the defendants Adelphi Taxi Corp. and Ann Service Corp. and operated by the defendant Neal F. Johnson, and was pushed 15 feet into the intersection. Lee S. Daliendo's affidavit also stated that as a result of the accident, he suffered serious and permanent injuries.

The defendants Adelphi Taxi Corp. and Ann Service Corp. (hereinafter the corporate defendants) opposed this motion and cross-moved for summary judgment dismissing the complaint as against them on the ground that the plaintiffs had failed to demonstrate that Lee S. Daliendo had suffered "[s]erious injur[ies]", a statutory prerequisite to the lawsuit. In opposition to the plaintiffs' motion, little was offered by the corporate defendants. The attorney stated that the defendant Johnson was no longer employed by them and that his whereabouts were unknown. The corporate defendants appended a partially unreadable unsworn statement given by Mr. Johnson to an attorney for them, indicating that the light was green and Lee S. Daliendo cut in front of him and stopped short.

In support of their cross motion for summary judgment, the corporate defendants submitted the transcript of Lee S. Daliendo's examination before trial and numerous medical reports. The reports related solely to Mr. Daliendo's medical treatment following the second accident. His testimony regarding his injuries following the first accident indicate that he suffered from headaches and dizziness. The claimed symptoms, however, were of relatively short duration and required no medication and minimal medical attention. Thus, we concur with the Supreme Court's conclusion that in the absence of the injuries resulting from the second accident, the action would be barred by the application of Insurance Law § 5102. Consequently, proof of a causal connection between the two accidents is essential to his case.

The portions of Lee S. Daliendo's examination before trial pertinent to the issue of a causal connection between the two accidents are his statements that he struck his head on the steering wheel during the first accident, experienced headaches and dizziness for the next two days and that he blacked out just before the second accident which occurred on the night of May 10, 1983. However, he further stated that as of May 10, 1983, the headaches and dizziness had stopped. A letter from Dr. Mitchell Levine, who treated Lee S. Daliendo following the second accident, stating that he "could find no objective sequela of his accident", was also submitted in support of the cross motion.

In his affidavit in opposition to the cross motion, the plaintiff Lee S. Daliendo reiterated the circumstances of the first accident and stated that on the day of that accident, he visited Dr. Michael Labate with complaints of severe headaches and dizziness, among other symptoms. Dr. Labate prescribed rest and the use of a neck brace. Mr. Daliendo described the May 10, 1983, accident as follows:

"[W]hile driving within the speed limit on Cross Bay Boulevard, Queens County, New York, I suddenly blacked out and collided with two trees, a No Parking sign, and a utility pole.

"I was not on any medication, did not take any drugs or alcohol, and never blacked out before this incident."

He was taken by ambulance to Peninsula Hospital Center, where he was admitted for injuries to his head, neck, back and left knee. The major injury concerned the left knee. In July 1983 his left leg was placed in a cast for about a month. In August 1983 a diagnosis was made of chondromalacia of the lateral femoral condyle and tibial plateau, a torn medial meniscus and arthroscopic surgery was performed in the nature of a chondoplasty and partial lateral meniscectomy. Mr. Daliendo stated that he lost a year from work and still complains of pain, swelling and weakness.

The plaintiffs also submitted the affidavit of Dr. Leonard Langman who examined Mr. Daliendo, reviewed his medical records and stated that, in his opinion, with a reasonable degree of medical certainty, Mr. Daliendo sustained a concussion in the accident of May 7, 1983, and that this injury was a "competent producing cause" of the loss of consciousness suffered just prior to the automobile accident of May 10, 1983.

The Supreme Court granted the cross motion for summary judgment, finding that the affidavit of Dr. Langman was "mere conjecture" since the doctor examined Mr. Daliendo subsequent to the second accident, did not describe the examination performed, and the affidavit contained only "conclusory assertions". The court also drew a negative inference from the plaintiffs' failure to submit an affidavit by Dr. Labate, who treated Lee S. Daliendo on one occasion between the two accidents. Having dismissed the complaint for failure to establish a "[s]erious injury", the court denied, as academic, the plaintiffs' motion for partial summary judgment on the issue of fault.

II

There is no question that, as a matter of law, the injuries sustained in the first accident were insufficient to establish "[s]erious injur[ies]". The headaches, pain in the left knee and elbows, chest and back were of a minor nature. Suits based on such injuries are intended to be proscribed by the no-fault law (Scheer v. Koubek, 70 N.Y.2d 678, 518 N.Y.S.2d 788, 512 N.E.2d 309; Licari v. Elliott, 57 N.Y.2d 230, 239, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Grotzer v. Levy, 133 A.D.2d 67, 518 N.Y.S.2d 629). On the other hand, it is equally clear that the injury to Lee S. Daliendo's left knee sustained or aggravated in the accident of May 10, 1983, was sufficiently serious to raise a triable issue as to whether it constituted a "[s]erious injury". The real issue on this appeal is whether the plaintiffs have sufficiently linked the two accidents by establishing, for the purposes of this summary judgment motion and cross motion, that the head injury sustained in the first accident was a competent producing cause of a blackout which led to the second accident. In our view, the plaintiff sustained this burden.

It is basic summary judgment law that the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298). "The party opposing...