Damas v. Valdes

• Decision Date: 12 April 2011
• Citation: 2011 N.Y. Slip Op. 03022,84 A.D.3d 87,921 N.Y.S.2d 114
• Parties: Marie–Carmene DAMAS, respondent, v. Romann VALDES, et al., appellants.
• Court: New York Supreme Court

84 A.D.3d 87

921 N.Y.S.2d 114

Marie–Carmene DAMAS, respondent,

v.Romann VALDES, et al., appellants.

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

April 12, 2011.

Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles and Francis M. Cerniglia of counsel), for appellant Romann Valdes.

Lawrence, Worden, Rainis & Bard, P.C., Melville, N.Y. (Roger B. Lawrence of counsel), for appellants Raymond S. Gray and Exide Technologies.

Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for respondent.

A. GAIL PRUDENTI, P.J., MARK C. DILLON, RUTH C. BALKIN, and CHERYL E. CHAMBERS, JJ.

DILLON, J.

This appeal presents an issue of first impression in the appellate courts. We are asked to determine whether a pregnant plaintiff, who was prescribed prolonged bed rest to deal with preterm labor allegedly caused by an automobile accident, may obtain summary judgment under the 90/180–day category of the New York Insurance Law threshold. We hold that where there is proof that preterm labor is causally related to an automobile accident, and where a physician recommends bed rest, such bed rest does qualify the plaintiff for summary judgment if it meets the minimum time frame contemplated by Insurance Law § 5102(d) and if the defendant fails to raise a triable issue of fact in opposition. For reasons set forth below, we find that in this matter, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of serious injury, as her submissions did not establish the causal connection between the automobile accident on the one hand, and the prescribed bed rest on the other.

I. Relevant Facts

On March 29, 2006, the plaintiff was a passenger in an automobile owned by the defendant Romann Valdes, which was involved in an accident with a second vehicle owned by the defendant Exide Technologies (hereinafter Exide) and operated by the defendant Raymond S. Gray. At the time of the occurrence, the plaintiff was three months pregnant and carrying twins. The plaintiff thereafter prematurely delivered her twins in the seventh month of gestation.

In her bills of particulars, dated August 23, 2007, and February 6, 2009, the plaintiff claimed that, as a result of the accident, she had been confined to bed for approximately 15 weeks, confined to home for approximately 20 weeks, and incapacitated from employment for four months. She alleged, as a basis of recovery, that she was disabled at least 90 of the 180 days following the accident.

The plaintiff testified at her deposition that, immediately after the accident, she felt abdominal pain and contractions. She was treated at the emergency room of Brookdale Hospital and was examined by Dr. Jacqueline Ford. Dr. Ford found, inter alia, the absence of placental abruption or vaginal bleeding. Dr. Ford initially prescribed one week of pelvic and physical rest. According to the plaintiff, she continued to experience contractions and was admitted to the hospital on April 5, 2006, for 24 hours, until the contractions ceased. On April 19, 2006, the plaintiff was treated for nausea, vomiting, and dehydration, and then released. On June 7, 2006, the plaintiff complained of cramps and was diagnosed with “preterm labor, twin gestation,” for which she was again prescribed bed rest. The plaintiff's twins were born prematurely on July 31, 2006.

The plaintiff moved for summary judgment on the issue of serious injury on the ground that she was confined to bed and unable to engage in substantially all of her usual and customary activities for at least 90 of the 180 days following the accident (hereinafter the 90/180–days category). The plaintiff's motion was supported by a one-page affirmation of Dr. Ford, who opined that “[d]ue to the injuries sustained in the car accident on March 29, 2006, [the plaintiff] experienced pregnancy complications, and I prescribed her bed rest for the rest of her pregnancy for approximately six month[s].” Dr. Ford's affirmation was accompanied by disability claim forms which she executed on May 16, 2006, June 7, 2006, and July 10, 2006, reflecting diagnoses in each instance of preterm labor and, in the first instance, spontaneous “threatened abortion.” The plaintiff stated in a supporting affidavit that she remained at home or in bed, unable to work, upon the advice of her physician, for periods of time that totaled more than 90 of the 180 days immediately following the occurrence.

In separate submissions, Valdes, Exide, and Gray opposed the plaintiff's motion for summary judgment and cross-moved for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that the plaintiff did not sustain a threshold injury under the 90/180–days category, permanent loss of use, permanent consequential limitation, and significant limitation categories of Insurance Law § 5102(d).

Regarding the 90/180–days category, Valdes proffered the affirmation of an obstetrician, Dr. Leonard Roberts, who examined the plaintiff and noted that she had increased distention of the uterine cavity attributable to her multifetal pregnancy, but no anatomic injury. Dr. Roberts opined that the plaintiff's “premature labor” and emergency cesarian section were due to the observed distention of the uterine cavity and bore no relation to the subject accident.

As to the same threshold category, Exide and Gray proffered an unsworn, unaffirmed report of Dr. Milton Haynes. Dr. Haynes noted that the plaintiff had a medical history that included two prior preterm labors and deliveries in 2001 and 2003, and a surgical conization procedure on her cervix in 2003 which can result in an incompetent and shortened cervix and preterm labor. Based on the plaintiff's history of preterm labor, the conization procedure, and the shortened cervix found by examination, Dr. Haynes concluded that the plaintiff's preterm delivery on July 31, 2006, was not causally related to the subject accident.

In the order appealed from dated June 2, 2009, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of serious injury under the 90/180–days category of the Insurance Law and denied the defendants' respective cross motions for summary judgment dismissing the complaint insofar as asserted against them.

We modify and conclude that the plaintiff's motion for summary judgment on the issue of serious injury on the 90/180 days category of Insurance Law § 5104 and § 5102(d) should have been denied, as she failed to make a prima facie showing of entitlement to judgment as a matter of law.

II. The Plaintiff's Motion For Summary Judgment

Insurance Law § 5104 provides that there shall be no right of recovery for personal injuries arising out of negligence in the use or operation of a motor vehicle within the state, except in the case of serious injury or for basic economic loss ( seeInsurance Law § 5104). Serious injury is defined by condition-specific categories in Insurance Law § 5102(d), and includes, inter alia, a medically-determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 355–56, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [there must be curtailment of usual activities to a great extent, rather than some slight curtailment]; Ellithorpe v. Marion, 34 A.D.3d 1195, 1197, 824 N.Y.S.2d 836).

Initially, we address the general question of whether a plaintiff's prolonged bed rest, upon the advice of a physician, to address preterm labor causally related to an automobile accident, may qualify as a “serious injury” under the 90/180–days category of Insurance Law § 5102(d). To date, no appellate case has specifically addressed the question.

The Comprehensive Motor Vehicle Insurance Reparations Act, commonly referred to as the No–Fault Law, as codified in article 51 of the Insurance Law, was enacted in 1973 primarily to ensure prompt compensation to auto accident victims without regard to fault, to reduce the burden on the courts, and to provide premium savings to New York motorists ( see Matter of Medical Socy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 860, 768 N.Y.S.2d 423, 800 N.E.2d 728).Insurance Law 5102(d), as amended in 1984 ( see L. 1984, ch. 367, § 1, L. 1984, ch. 955, § 4) provided, for the first time, that “loss of a fetus” constitutes a serious injury for which a plaintiff may recover damages for noneconomic loss ( see generally Brannan v. Brownsell, 23 A.D.3d 1106, 1107, 804 N.Y.S.2d 217;McKendry v. Thornberry, 23 Misc.3d 707, 711–712, 872 N.Y.S.2d 658;Doyle v. Van Pelt, 189 Misc.2d 67, 70, 730 N.Y.S.2d 417). Left unresolved by Insurance Law § 5102(d) and post–1984 case law is whether “loss of a fetus” represents the minimum injury that the legislature intended to require for the recovery of damages for pregnancy-related noneconomic loss in automobile actions in the state ( see Damas v. Valdes, 23 Misc.3d 1133[A], 2009 WL 1532831 ) or, as noted by the Supreme Court, whether the 1984 amendment to the no-fault law could be merely interpreted as reflecting a legislative intent to protect pregnancy ( id.,citing McKendry v. Thornberry, 23 Misc.3d 707, 711, 872 N.Y.S.2d 658).

Upon consideration of the issue, we hold that the “loss of fetus” category and the 90/180–days category of Insurance Law § 5102(d) are two separate, independent, and free-standing statutory bases by which a plaintiff may be eligible for damages for qualifying noneconomic loss sustained by the use or operation of motor vehicles. The various categories of “serious injury” as defined by Insurance Law § 5102(d) are read in the disjunctive, so that the...