Deans v. Turner
| Decision Date | 07 April 2021 |
| Docket Number | Index EF009058-2018 |
| Citation | 2021 NY Slip Op 33204 (U) |
| Parties | SEAN DEANS, Plaintiff, v. JODY L. TURNER and NICOLE L. TURNER, Defendants. Sequence Nos. 4-5 |
| Court | New York Supreme Court |
Motion Date: 1/29/2021
DECISION AND ORDER
The following papers numbered 1 to 31 were considered in connection with the defendants' motion (Sequence #4) for summary judgment on the issue of liability and plaintiffs motion (Sequence #5) for summary judgment on the issue of liability and serious personal injury in accordance with Insurance Law §5102:
PAPERS NUMBERED
Notice of Motion(Seq. #4)/Affirmation (Greisman)/ Exhibits A - G 1-9
Notice of Motion(Seq. #5)Affirmation in Opposition(Le Du)/Exhibits A - N 12-27
Affirmation in Reply (Le Du) 31
This personal injury action arises out of a motor vehicle accident that took place on June 25, 2018 on Route 300, in the City of Newburgh, Orange County, New York. Plaintiff commenced this action by filing a Summons and Complaint on April 9, 2019. Issue was joined by Verified Answer filed on October 23, 2018. Plaintiff alleges he sustained serious injuries as defined in Insurance Law §5102(d). Plaintiff served a Bill of Particulars dated January 17 2019.
Plaintiff claims the following injuries/conditions to establish a serious injury: partial articular-sided rotator cuff tear superior labral tear; partial tear of coracohumeral ligament 14/5 broad posterior subligamentous disc herniation; L2/3 and L3/4 primarily peripheral subligamentous disc bulging; left knee contusion with torn medial meniscus and chondral injury with synovitis; and lateral meniscal tear. Plaintiff underwent left knee arthroscopy on September 19, 2018, for partial medial and lateral meniscectomy; synovectomy abrasion arthroplasty medial femoral condyle.
The Examination before Trial of plaintiff Sean Deans was held on September 19, 2019. The Examination before Trial of defendant Nicole Turner was held on October 14, 2019. The Examination before Trial of defendant Jody Turner was held on October 14 2019. The Examination before Trial of non-party witness Robert Rindfleisch was held on October 8, 2020. Note of Issue was filed on December 17, 2019.
Deposition of plaintiff Sean Deans (Exhibit D)
On June 25, 2018, at approximately 5:00 p.m., plaintiff was exiting the Verizon parking lot and attempting to make a left turn and travel southbound on Route 300 in Newburgh. There are two northbound lanes that bottleneck into a single lane by the Verizon parking lot, one southbound lane, and a single two-way turning center lane. The weather on the day of the accident was sunny and clear.
Plaintiff pulled up to the stopped northbound traffic, waiting to make a left turn, and looked in both directions. Traffic in the northbound lane was standing still. The southbound lane was clear.
Plaintiff testified that, while the drivers in the northbound lane of Route 300 had the right of way, a stopped vehicle in the northbound lane left enough room for plaintiff to cross the northbound lanes and complete the left turn into the southbound lane. Plaintiff pulled into the northbound lane, stopped, and again looked in both directions. Both the southbound lane and two-way center turning lane were clear, and plaintiff proceeded. As plaintiff proceeded, defendant's vehicle, which was traveling in the center turning lane, struck plaintiff s vehicle in the driver's side front quarter panel. Plaintiff did not see defendant's vehicle or hear any sounds before the impact. Plaintiff described a single impact as feeling "like a Mack truck hit [him]."
Plaintiffs left knee struck the inside of his vehicle; his right arm was stuck between the armrest and his body, and he briefly lost consciousness. The impact pushed plaintiffs vehicle sideways through the center turning lane. Plaintiff exited the vehicle from the front passenger side. After the police arrived, plaintiff heard defendant telling the police officer that she was using the the two-way center turning lane to catch up to the stop light at the next intersection. This statement was omitted from the original police report, but was included in the amended report.[1]
Plaintiff was transferred by ambulance to St. Luke's hospital where he was examined and CT scans were taken of his neck and back. Plaintiff was discharged and driven home by his wife the same day. The following day, plaintiff sought treatment with Dr. Harvey, a chiropractor. Dr. Harvey recommended seeing Dr. Dynof, a pain management specialist. Plaintiff was then scheduled for MRIs of his neck, back, and knee.
Plaintiff also sought treatment with Dr. Palmeri, an orthopedic surgeon. Dr. Palmeri advised that he had a torn meniscus in his left knee and a torn rotator cuff in his right shoulder. As a result of the accident, plaintiff underwent two surgeries on his right shoulder: the first on October 8, 2018, the second on March 6, 2019. Plaintiff also underwent surgery on his left knee on September 19, 2018. Plaintiff subsequently received physical therapy three days per week, until he returned to work on June 10, 2019. At the time of deposition, plaintiff had pain in his neck, back, right shoulder, right hand, and left knee.
Prior to the accident, plaintiff worked at Verizon and United Foods. After the accident, plaintiff was out of work on disability leave from both jobs from the date of the accident until June 10, 2019. In June of 2019, plaintiff was at risk of losing his jobs, so he obtained a note from Dr. Palmeri advising his employers that he could return to work. With respect to his job with Verizon, plaintiff received full disability pay until March of 2019 (nine months); he then received half pay for approximately three months. He returned to the same position at the same hourly rate. With respect to his job at United Foods, he returned back to work in June of 2019, shortly after returning to Verizon.
Plaintiff testified that, as a result of the accident, he is no longer able to perform job duties, including kneeling down for long periods; carrying equipment on his right arm, and holding his right arm up. He also cannot take his shirt off without assistance and has difficult reaching and picking up his grandchildren.
Deposition of defendant Nicole Turner (Exhibit E)
Defendant Turner testified that she was traveling north on Route 300. There are two northbound lanes, which merge into a single lane at the Verizon building. There is also a two-way left turn-center lane, which proceeds until the next intersection; it then turns into a left turning lane to Route 52.
Prior to the accident, defendant was traveling in the northbound lane with at least twenty cars in front of her. The northbound lanes had merged, and traffic was "extremely heavy."
Before she entered the two-way center turning lane, she could not see the traffic light, as there were "several cars in front of [her.]" Defendant entered the two-way center turning lane, which had fewer vehicles, and proceeded forward to the upcoming intersection.
She proceeded forward approximately two car lengths when she observed the plaintiff looking in the direction of the southbound lane as he attempted to make a left turn, crossing the northbound lane and two-way center turning lane. Defendant hit her brakes "extremely hard;" the brakes let out a screech. The plaintiff struck the front passenger side of defendant's vehicle with the front driver's side of plaintiff s vehicle. Defendant observed the plaintiff fly out of the parking lot traveling approximately 40 miles per hour a "split second" before the impact. Although she had traveled only two car lengths after entering the two-way center turning lane, defendant testified she was traveling "around 25 miles an hour" at the time of impact.
Deposition of Robert Rindfleisch (Exhibit F)
At the time of the accident, non-party Robert Rindfleisch was in one of the northbound lanes, before the two northbound lanes merge. Defendant's vehicle was traveling forward in the two-way center turning lane to his left, heading toward the next intersection approximately 500 to 600 yards away. Rindfleisch testified that the plaintiff was attempting to make a left turn across the northbound lane and center turning lane. The plaintiff was traveling between 5 and 7 miles per hour and the defendant was traveling between 15 and 20 miles per hour. Reindfleisch testified that, once the plaintiff cleared the northbound lane he never looked toward the northbound traffic again. The plaintiff tried to travel through the two-way center turning lane and was struck. Rindfleisch testified that he had good visibility of the accident due to the elevated level of his truck.
Summary Judgment on Liability (Sequences #4 and #5)
By Notice of Motion filed on December 22, 2020, defendants move for summary judgment on the issue of liability. Defendants claim entitlement to summary judgment on liability as the sole proximate cause of the accident was plaintiffs failure to yield the right of way when pulling out of a parking lot while making a left turn. Defendant's vehicle was within her lane of travel when plaintiff suddenly attempted a left turn across defendant's lane of travel. Plaintiff testified that vehicles traveling north on Route 300 had the right of way. As such, plaintiffs action violated Vehicle & Traffic Law § 1143. (McKinney's Veh. & Traffic Law §1143) Such actions, defendants argue, constitutes negligence per se.
In opposition, plaintiff argues that defendants have failed to meet their burden on...
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