Hill v. Thomas P. Cash

• Decision Date: 02 May 2014
• Citation: 985 N.Y.S.2d 345,117 A.D.3d 1423,2014 N.Y. Slip Op. 03058
• Parties: Charles R. HILL and Cathy Hill, Individually and as Husband and Wife, Plaintiffs–Appellants, v. Thomas P. CASH, As Coadministrator of the Estate of Brett W. Riethmiller, Deceased, Cynthia D. Riethmiller, As Coadministrator of the Estate of Brett W. Riethmiller, Deceased, Thomas P. Cash and Cynthia D. Riethmiller, As Coadministrators of the Estate of Brett W. Riethmiller, Doing Business As ELM Street Automotive, Defendants–Respondents. (APPEAL NO. 1.).
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1423

985 N.Y.S.2d 345

2014 N.Y. Slip Op. 03058

Charles R. HILL and Cathy Hill, Individually and as Husband and Wife, Plaintiffs–Appellants,

v.Thomas P. CASH, As Coadministrator of the Estate of Brett W. Riethmiller, Deceased, Cynthia D. Riethmiller, As Coadministrator of the Estate of Brett W. Riethmiller, Deceased, Thomas P. Cash and Cynthia D. Riethmiller, As Coadministrators of the Estate of Brett W. Riethmiller, Doing Business As ELM Street Automotive, Defendants–Respondents. (APPEAL NO. 1.).

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

May 2, 2014.

Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of Counsel), for Plaintiffs–Appellants.

Brown & Kelly, LLP, Buffalo (H. Ward Hamlin, Jr., of Counsel), for Defendants–Respondents.

PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, and VALENTINO, JJ.

MEMORANDUM:

In appeal No. 1, plaintiffs appeal from an order that denied their motion for “[s]ummary judgment on negligence, serious injury and liability,” as well as “dismissal of certain affirmative defenses.” In appeal No. 2, defendant Charles R. Hill (Hill), who is also a plaintiff in appeal No. 1, appeals from an order that denied his motion for summary judgment “on negligence,” which thus sought summary judgment dismissing the complaint against him. We modify the order in appeal No. 1 by granting plaintiffs' motion in part and dismissing the fifth affirmative defense of defendants Thomas P. Cash and Cynthia D. Riethmiller, as coadministrators of the estate of Brett W. Riethmiller, doing business as Elm Street Automotive, which alleges Hill's culpable conduct, and the second affirmative defense of defendants Thomas P. Cash and Cynthia D. Riethmiller, as coadministrators of the estate of Brett W. Riethmiller, which also alleges Hill's culpable conduct. We reverse the order in appeal No. 2, and we grant Hill's motion.

These actions arise from a motor vehicle accident that occurred on August 12, 2007 on Route 16 near its intersection with Plymouth Avenue in Farmersville. The relevant part of Route 16 is straight and flat, and it has two lanes of travel that are bounded by fog lines and separated by a broken yellow line. The posted speed limit in that area of Route 16 is 45 miles per hour.

At approximately 9:25 a.m. on the date of the accident, the weather was dry and sunny, and Hill was driving his pickup truck southbound at a speed of 40 miles per hour on the part of Route 16 in question. At the same time, Brett W. Riethmiller (decedent) was operating his vehicle in the northbound lane of the relevant part of Route 16, with his wife, Penny C. Riethmiller (Penny), traveling as a front seat passenger. The administratrix of Penny's estate is the plaintiff in appeal No. 2, while Hill and his wife are the plaintiffs in appeal No. 1. According to Hill's deposition testimony, he observed decedent's vehicle from a distance of approximately a quarter of a mile, and at some point thereafter he noticed a deer approximately 200 to 300 yards ahead of his vehicle and 100 yards to the right of the roadway. Hill was traveling at a speed of 35 to 40 miles per hour at the time, and the deer was running full speed through a grass field toward Route 16.

There was nothing to obstruct the deer's path from the field to Route 16, and at some point the deer entered the southbound lane of traffic ahead of Hill's vehicle. Hill continuously watched the deer from the time he noticed it to the time it entered the roadway, and he immediately removed his foot from the accelerator of his vehicle when he saw the deer enter the roadway. Hill watched the deer until it left his lane and entered the northbound lane of traffic, and he did not move his vehicle to the left or to the right between the time he first saw the deer and the time it entered the northbound lane of traffic on Route 16, i.e., Hill continued to drive straight down Route 16 during that time. The deer was approximately 200 yards in front of Hill when it was in the southbound lane of traffic, and Hill did not apply his brakes between the time he first noticed the deer and the point at which it entered the northbound lane of traffic on Route 16 because the deer was far enough away that Hill knew he would not strike it with his vehicle. Hill did not see the deer after it entered the northbound lane of traffic on Route 16, and he assumed that it was going to continue straight across the roadway into a nearby cornfield.

Hill, however, observed decedent's vehicle leave its northbound lane of travel on Route 16 and enter the southbound lane as the deer entered northbound traffic. Hill did not hear the sound of a horn from decedent's vehicle before it entered the southbound lane of traffic, nor did he hear the sound of any tires screeching until just before decedent's vehicle collided with Hill's vehicle. Hill applied his brakes as soon as he noticed decedent's vehicle leave the northbound lane of Route 16 and enter Hill's southbound lane of traffic, and at the same time he swerved to the right in an unsuccessful attempt to avoid an impact. Hill's vehicle collided with decedent's vehicle on the shoulder adjacent to the southbound lane of Route 16 between the fog line and the guide rail that ran parallel to that part of that roadway.

We conclude in appeal No. 1 that Supreme Court properly denied that part of plaintiffs' motion seeking summary judgment on the issue of serious injury solely under the 90/180–day category ( seeInsurance Law § 5102[d] ). That category requires proof that the injury “prevents a 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” ( Nitti v. Clerrico, 98 N.Y.2d 345, 357 n. 5, 746 N.Y.S.2d 865, 774 N.E.2d 1197). A plaintiff must establish that he or she suffered a “ ‘medically determined injury or impairment of a non-permanent nature ... as well as ... that [his or her] activities were curtailed to a great extent’ by that injury” ( Cummings v. Jiayan Gu, 42 A.D.3d 920, 921, 839 N.Y.S.2d 663). “Although this statutory category lacks the ‘significant’ and ‘consequential’ terminology of the two [above mentioned categories], a plaintiff must present objective evidence of ‘a medically determined injury or impairment of a non-permanent nature’ ” ( Nitti, 98 N.Y.2d at 357, 746 N.Y.S.2d 865, 774 N.E.2d 1197, quoting Insurance Law § 5102[d] ).

“[A] causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury” ( Smith v. Besanceney, 61 A.D.3d 1336, 1337, 877 N.Y.S.2d 538 [internal quotation marks omitted] ), and posttraumatic stress disorder (PTSD) “may constitute such an injury when it is causally related to a motor vehicle accident and demonstrated by objective medical evidence” ( Krivit v. Pitula, 79 A.D.3d 1432, 1432, 912 N.Y.S.2d 789). Moreover, “PTSD may be demonstrated without diagnostic testing for purposes of Insurance Law § 5102(d) by symptoms objectively observed by treating physicians and established by the testimony of the injured plaintiff and others who observe the injured plaintiff” ( id. at 1434, 912 N.Y.S.2d 789).

Even assuming, arguendo, that plaintiffs met their initial burden on the issue of serious injury, we conclude that defendants raised an issue of fact sufficient to defeat the motion by submitting the records of Hill's psychologist ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Contrary to plaintiffs' contention, defendants were entitled to rely on those records despite the fact that they were unsworn inasmuch as they were preparedby plaintiff's treating psychologist ( see Franchini v. Palmieri, 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282;Meely v. 4 G's Truck Renting Co., Inc., 16 A.D.3d 26, 29–30, 789 N.Y.S.2d 277;Pagano v. Kingsbury, 182 A.D.2d 268, 270–271, 587 N.Y.S.2d 692).

We agree with plaintiffs in appeal No. 1, however, that the court erred in denying those parts of their motion seeking...