Gamblin v. Nam

• Decision Date: 23 December 2021
• Docket Number: 850,CA 21-00405
• Parties: Kathy GAMBLIN, Plaintiff-Respondent-Appellant, v. Mimi NAM and Dong H. Nam, Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1610

161 N.Y.S.3d 550

Kathy GAMBLIN, Plaintiff-Respondent-Appellant,

v.Mimi NAM and Dong H. Nam, Defendants-Appellants-Respondents.

850

CA 21-00405

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

Entered: December 23, 2021

LAW OFFICES OF JOHN TROP, ROCHESTER (TIFFANY L. D'ANGELO OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.

VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

PRESENT: SMITH, J.P., CARNI, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying plaintiff's motion in its entirety, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when the vehicle in which she was a passenger was struck by a vehicle driven by Mimi Nam (defendant) and owned by Dong H. Nam (collectively, defendants). Specifically, plaintiff alleged in an amended complaint that, as a result of defendant's negligence, the vehicle defendant was driving rear-ended the vehicle in which plaintiff was a passenger, causing plaintiff to sustain serious injuries. Plaintiff moved for summary judgment on the issues of defendant's negligence and whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) under the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories, and defendants cross-moved for summary judgment dismissing the amended complaint. Defendants now appeal from an order insofar as it granted plaintiff's motion in part with respect to the issue of negligence and denied the cross motion with respect to that issue. Plaintiff cross-appeals from the same order to the extent that it denied her motion in part with respect to the three abovementioned categories of serious injury and granted the cross motion with respect to the permanent consequential limitation of use category of serious injury.

Initially, we agree with defendants on their appeal that Supreme Court erred in granting plaintiff's motion insofar as it sought summary judgment on the issue of negligence, and we therefore modify the order accordingly. We conclude that the court erred in analyzing this case under the legal framework generally applicable in the context of a rear-end collision, i.e., where there is a presumption of negligence absent the defendant's proffer of a nonnegligent explanation for the collision (see e.g. Wisniewski v. Jaeger , 189 A.D.3d 2129, 2129, 134 N.Y.S.3d 862 [4th Dept. 2020] ; Rodriguez v. First Student, Inc. , 163 A.D.3d 1425, 1427, 80 N.Y.S.3d 816 [4th Dept. 2018] ). Rather, the court should have applied general negligence principles to determine whether plaintiff met her initial burden on her motion with respect to the issue of defendant's negligence (see generally Edwards v. Gorman , 162 A.D.3d 1480, 1481, 78 N.Y.S.3d 536 [4th Dept. 2018] ; PJI 2:77 ). The largely undisputed facts in this case, as set forth in plaintiff's submissions, establish that the subject accident was not the prototypical rear-end collision warranting application of the presumption of negligence. Prior to the accident, plaintiff's daughter was driving the vehicle in which plaintiff was a passenger on an entrance ramp leading to the New York State Thruway when the vehicle suddenly hit a patch of ice, causing it to slide off the road and into a ditch. About 10 minutes later, defendant's vehicle encountered the same patch of ice on the road, also slid off the road into the ditch, and then struck plaintiff's vehicle from behind. Defendant had no idea that plaintiff's car had even been on the road until the collision occurred.

Under these facts, we conclude that defendant never had any opportunity to keep a safe distance from plaintiff's vehicle (see generally Vehicle and Traffic Law § 1129 ). Additionally, the facts of this particular case do not implicate the presumption applicable in most rear-end collision cases because there was a "substantial time interval" between when each vehicle encountered the icy condition, slid off the road, and entered the ditch ( Holtermann v. Cochetti , 295 A.D.2d 680, 681, 743 N.Y.S.2d 590 [3d Dept. 2002] ; see Torres v. WABC Towing Corp. , 282 A.D.2d 406, 406-407, 724 N.Y.S.2d 49 [1st Dept. 2001] ). Indeed, unlike most typical rear-end collision cases, this is not a case where two vehicles were essentially driving in tandem down the road in the moments leading up to the accident. Thus, the presumption of negligence does not apply here because it cannot be determined that defendant violated any "duty to maintain a safe distance" between her vehicle and plaintiff's vehicle prior to the accident ( Webber v. Bleiler , 270 A.D.2d 933, 934, 705 N.Y.S.2d 473 [4th Dept. 2000] ; see Kress v. Allen , 11 A.D.3d 985, 986, 782 N.Y.S.2d 232 [4th Dept. 2004] ; Gubala v. Gee , 302 A.D.2d 911, 912, 754 N.Y.S.2d 504 [4th Dept. 2003] ), and we conclude that, under general negligence principles, plaintiff failed to meet her initial burden on her motion of establishing defendant's negligence (see generally Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Torres-Cummings v. Niagara Falls Police Dept. , 193 A.D.3d 1372, 1373, 147 N.Y.S.3d 771 [4th Dept. 2021] ).

Moreover, even assuming, arguendo, that this case is governed by the rules generally applicable to rear-end collisions (see generally Rodriguez , 163 A.D.3d at 1427, 80 N.Y.S.3d 816 ), we conclude that the court should have denied that part of plaintiff's motion on the issue of negligence. Although it is undisputed that defendant's vehicle collided with the rear of plaintiff's vehicle, the parties’ submissions raise an issue of fact whether defendant had an adequate nonnegligent explanation for the collision sufficient to rebut the presumption of negligence (see Baldauf v. Gambino , 177 A.D.3d 1307, 1309, 111 N.Y.S.3d 773 [4th Dept. 2019] ). Specifically, plaintiff and defendant both testified at their depositions that there existed a sudden and unanticipated icy condition on the entrance ramp that caused both vehicles to slide off the road into the ditch where they collided (see id. ; Chwojdak v. Schunk , 164 A.D.3d 1630, 1631-1632, 84 N.Y.S.3d 635 [4th Dept. 2018] ; Dalton v. Lucas , 96 A.D.3d 1648, 1649, 947 N.Y.S.2d 285 [4th Dept. 2012] ).

For the same reasons, we conclude that, contrary to defendants’ further contention on their appeal, the court properly denied their cross motion with respect to the issue of negligence (see Baldauf , 177 A.D.3d at 1309, 111 N.Y.S.3d 773 ).

On the issue of serious injury, we conclude that, contrary to the contention of plaintiff on her cross appeal, the court properly denied her motion with respect to the three categories of serious injury in question, and properly granted the cross motion insofar as it sought summary judgment dismissing plaintiff's claim under the permanent consequential limitation of use category. With respect to the significant limitation of use category, " ‘[w]hether a limitation of use ... is "significant" ... relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part’ " ( Toure v. Avis Rent A Car Sys. , 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002], rearg denied 98 N.Y.2d 728, 749 N.Y.S.2d 478, 779 N.E.2d 189 [2002] ; see Habir v. Wilczak , 191 A.D.3d 1320, 1322, 141 N.Y.S.3d 596 [4th Dept. 2021] ). We conclude that plaintiff satisfied her initial burden on the motion with respect to that category. Plaintiff submitted an affirmation from an expert who opined that plaintiff sustained cervical and lumbar strains

that had not resolved about 10 months after the accident, and also submitted evidence that she had severe muscle spasms, which constitute objective evidence of injury (see

Latini v. Barwell , 181 A.D.3d 1305, 1307, 121 N.Y.S.3d 760 [4th Dept. 2020] ; Armella v. Olson , 134 A.D.3d 1412, 1413, 22 N.Y.S.3d 722 [4th Dept. 2015] ; Austin v. Rent A Ctr. E., Inc. , 90 A.D.3d 1542, 1544, 935 N.Y.S.2d 767 [4th Dept. 2011] ). Plaintiff further submitted "several reports of tests that produced ‘designation[s] of ... numeric percentage[s] of ... plaintiff's loss of range of motion’ " ( Thomas v. Huh , 115 A.D.3d 1225, 1225, 982 N.Y.S.2d 634 [4th Dept. 2014] ; see

Matte v. Hall , 20 A.D.3d 898, 899, 798 N.Y.S.2d 829 [4th Dept. 2005] ; see generally

Toure , 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ). In opposition to the motion, however, defendants raised a triable issue of fact with respect to the significant limitation of use category "by submitting an affirmation of a radiologist...