Fillette v. Lundberg

• Decision Date: 25 May 2017
• Citation: 150 A.D.3d 1574,55 N.Y.S.3d 783
• Parties: John FILLETTE Jr., Appellant, v. Peter T. LUNDBERG, Respondent.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1574

55 N.Y.S.3d 783

John FILLETTE Jr., Appellant,

v.Peter T. LUNDBERG, Respondent.

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

May 25, 2017.

John T. Casey Jr., Troy, for appellant.

Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Jessica A. Rounds of counsel), for respondent.

Before: GARRY, J.P., LYNCH, CLARK, MULVEY and AARONS, JJ.

CLARK, J.

Appeal from an order of the Supreme Court(Cahill, J.), entered March 7, 2016 in Ulster County, which, among other things, granted defendant's cross motion for summary judgment dismissing the complaint.

On June 7, 2014, plaintiff was driving northbound when defendant's vehicle, which was traveling in the opposite direction, crossed the double yellow line and struck the front, left side of plaintiff's vehicle.Plaintiff subsequently commenced this action alleging that he sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of defendant's negligence.Soon after, defendant joined issue, and, upon his demand, plaintiff filed a bill of particulars in which he claimed to have sustained a serious injury under the significant limitation of use of a body function or system and the 90/180–day categories.¹Following discovery, plaintiff moved for summary judgment on the issue of liability, and defendant cross-moved for summary judgment dismissing the complaint.Supreme Court denied plaintiff's motion, granted defendant's cross motion and dismissed the complaint.Plaintiff appeals.

Initially, we agree with plaintiff that Supreme Court erred in denying his motion for summary judgment on the issue of liability.Where, as here, a driver of a motor vehicle crosses a double yellow line into an oncoming lane of traffic in violation of the Vehicle and Traffic Law(seeVehicle and Traffic Law §§ 1120,1126[a] ) and strikes another motor vehicle, a prima facie case of negligence is established (seeRodriguez v. Gutierrez,138 A.D.3d 964, 967, 31 N.Y.S.3d 97[2016];Snemyr v. Morales–Aparicio,47 A.D.3d 702, 703, 850 N.Y.S.2d 489[2008];Hazelton v. D.A. Lajeunesse Bldg. & Remodeling, Inc.,38 A.D.3d 1071, 1072, 832 N.Y.S.2d 114[2007] ).Here, plaintiff's deposition testimony that defendant's southbound vehicle crossed the double yellow line and entered his northbound lane of travel, coupled with defendant's deposition testimony that he pleaded guilty to a traffic ticket for crossing a double yellow line, established defendant's per se negligence.While violations giving rise to negligence per se may be excused if they are the result of "an unforeseen and unexpected medical emergency"(Hazelton v. D.A. Lajeunesse Bldg. & Remodeling, Inc.,38 A.D.3d at 1072, 832 N.Y.S.2d 114 ) or other " ‘emergency situation not of the driver's own making’ "(Snemyr v. Morales–Aparicio,47 A.D.3d at 703, 850 N.Y.S.2d 489, quotingFoster v. Sanchez,17 A.D.3d 312, 313, 792 N.Y.S.2d 579[2005];seeRodriguez v. Gutierrez,138 A.D.3d at 967, 31 N.Y.S.3d 97 ), defendant's testimony, unsupported by any corroborating medical evidence, that he did not recall how the accident had occurred because he"[b]lacked out probably" or "blocked it out" was insufficient to create an issue of fact as to whether the accident was caused by an unforeseen emergency, medical or otherwise (seeHazelton v. D.A. Lajeunesse Bldg. & Remodeling, Inc.,38 A.D.3d at 1072, 832 N.Y.S.2d 114;Chiaia v. Bostic,279 A.D.2d 495, 496, 719 N.Y.S.2d 277[2001] ).Moreover, defendant testified that, although one of his prescription medications had the potential to cause drowsiness, he did not believe that the prescription made him drowsy because he had become accustomed to the drug after a few weeks.Accordingly, as defendant failed to rebut plaintiff's prima facie showing that defendant's negligence proximately caused the accident, Supreme Court should have granted plaintiff's motion for summary judgment on the issue of liability (seeChiaia v. Bostic,279 A.D.2d at 496, 719 N.Y.S.2d 277 ).

Turning to defendant's cross motion for summary judgment dismissing the complaint, "[u]nder New York's No–Fault Law, an injured party's right to bring a personal injury action for noneconomic losses ... arising out of an automobile accident is limited to those instances where such individual has incurred a serious injury"(Jones v. Marshall,147 A.D.3d 1279, 1283, 47 N.Y.S.3d 791[2017][internal citation omitted];seeInsurance Law § 5104 [a];Cross v. Labombard,127 A.D.3d 1355, 1355, 9 N.Y.S.3d 413[2015] ).As relevant here, Insurance Law § 5102(d) defines a serious injury as a "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 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."As the proponent of a motion for summary judgment dismissing the complaint, the defendant bears the burden of establishing, by competent medical evidence, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)(seeBaez v. Rahamatali,6 N.Y.3d 868, 869, 817 N.Y.S.2d 204, 850 N.E.2d 19[2006];DeHaas v. Kathan,100 A.D.3d 1057, 1058, 952 N.Y.S.2d 844[2012] ).If the defendant satisfies this initial burden, the plaintiff must then "come forward with objective medical evidence sufficient to create a question of fact regarding the existence of a serious injury caused by the accident"(Cross v. Labombard,127 A.D.3d at 1356, 9 N.Y.S.3d 413;seeBaez v. Rahamatali,6 N.Y.3d at 869, 817 N.Y.S.2d 204, 850 N.E.2d 19 ).

When a plaintiff relies on the significant limitation of use of a body function or system category, such claim must be based upon " ‘objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body ... function or system’ "(Martin v. LaValley,144 A.D.3d 1474, 1477, 41 N.Y.S.3d 790[2016], quotingJohn v. Engel,2 A.D.3d 1027, 1029, 768 N.Y.S.2d 527[2003];seeToure v. Avis Rent A Car Sys.,98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197[1995] ).Here, in support of his cross motion for summary judgment dismissing the complaint, defendant proffered the affirmed independent medical evaluation report of Richard Moscowitz, an orthopedist, who stated that plaintiff had a "full range of motion of both shoulders," that plaintiff's diagnosis of an acute cervical sprain had resolved and that plaintiff had reached maximum medical improvement.Defendant also submitted the unsworn report of Gabriel Aguilar,² a neurologist and one of plaintiff's treating physicians, who asserted that plaintiff's cervical sprain appeared to be resolved and that plaintiff had no restriction of movement or spasms in his neck or back.Together, these reports satisfied defendant's initial burden of establishing that plaintiff's alleged neck, back and left shoulder injuries did not qualify as a serious injury under the significant limitation of use category (seeFlottemesch v. Contreras,100 A.D.3d 1227, 1228, 954 N.Y.S.2d 247[2012];Womack v. Wilhelm,96 A.D.3d 1308, 1309–1310, 948 N.Y.S.2d 163[2012] ).³

In opposition, plaintiff produced the affirmation of Luis Mendoza, one of plaintiff's treating physicians.In his affirmation, Mendoza stated that, following his examination, he determined that plaintiff suffered from, among other things, lumbar radiculopathy, cervical thoracic lumbar sprain /strain, traumatic bursitis of the left shoulder, left shoulder sprain /strain and cervical thoracic lumbar muscle spasms as a direct result of the June 2014 motor vehicle accident.He asserted that he conducted several clinical objective tests on plaintiff–prior to his involvement in a second automobile accident on September 29, 2014–to determine his range of motion in his neck and lumbar and thoracic lumbar spine.Based on the results of these tests, which he quantified in his affirmation, Mendoza concluded that plaintiff suffered from a "significant loss of range of motion."Mendoza also stated that he observed muscle spasms in plaintiff's spine and that plaintiff tested positive for several other clinical objective range of motion tests to his left shoulder.This evidence, viewed in the light most favorable to plaintiff(seeCross v. Labombard,127 A.D.3d at 1356, 9 N.Y.S.3d 413;Hyatt v. Maguire,106 A.D.3d 1180, 1181, 966 N.Y.S.2d 238[2013] ), raised a triable issue of fact as to whether plaintiff's alleged neck, back and left shoulder injuries constitute a serious injury under the significant limitation of use category (seeHildenbrand v. Chin,52 A.D.3d 1164, 1165–1166, 861 N.Y.S.2d 438[2008];McGuirk v. Vedder,271 A.D.2d 731, 732, 706 N.Y.S.2d 485[2000] ), so as to defeat defendant's cross motion for summary judgment dismissing the complaint.

As for plaintiff's alleged psychological injuries, "[i]t has been established ‘that a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury’ "(Brandt–Miller v. McArdle,21 A.D.3d 1152, 1153, 801 N.Y.S.2d 834[2005], quotingBissonette v. Compo,307 A.D.2d 673, 674, 762 N.Y.S.2d 849[2003];seeKrivit v. Pitula,79 A.D.3d 1432, 1432, 912 N.Y.S.2d 789[2010] ).Here, defendant satisfied his initial burden of producing competent medical evidence establishing that plaintiff's alleged psychological injuries did not qualify as a serious injury under the significant limitation of use category by proffering the psychological evaluation of David Masur, a neuropsychologist.Specifically, Masur concluded, based upon his evaluation, that there was no indication that plaintiff suffered from "significant depression, traumatic stress, difficulty with...