Miller v. O'Mara Family Farms, Inc.
| Decision Date | 16 July 2021 |
| Docket Number | Index 500533/2017 |
| Parties | BRANDY MILLER and NOAH MILLER, Plaintiffs, v. O'MARA FAMILY FARMS, INC. and PATRICK LOUIS O'MARA, Defendants. Sequence No. 8 |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date: 04/28/2021
Michele D. Newsome, Esq.
Milber Makris Plousadis & Seiden, LLP
Attorneys for Defendants
Jon Kolbrener, Esq.
Braverman Greenspun, P.C.
Attorneys for Plaintiffs
DECISION & ORDER
The following papers, numbered 1 to 67, were considered in connection with Defendants' Notice of Motion, dated November 30, 2020, for an Order, granting summary judgement as to the issue of damages and dismissing the Complaint in its entirety; or alternatively, granting summary judgement to Defendants and dismissing the negligent entrustment cause of action.
Affirmation in Opposition/Affidavit in Opposition/ Exhs. 1-24/Memorandum of Law in Opposition 26-62
This action is for personal injuries sustained on May 9, 2017 when Plaintiff Brandy Miller was in an automobile accident at the intersection of Routes 22 and 312 in the Town of Southeast, New York with a vehicle owned by Defendant O'Mara Family Farms, Inc. ("O'Mara Family Farms"), and operated by Defendant Patrick Louis O'Mara, Jr. ("O'Mara Jr.")- Plaintiff Noah Miller is seeking loss of consortium.
On July 21, 2017, Plaintiffs commenced this action. Plaintiffs filed a Second Amended Verified Complaint on September 14, 2017, alleging injuries as result of the accident (Exh. B, Complaint at ¶26). Defendants served a Verified Answer on November 17, 2017 (NYSCEF Doc. No. 11).
It is alleged that on May 9, 2017, Mrs. Miller was driving eastbound on Route 312, and while making a left turn to proceed onto Route 22 North, Mrs. Miller's vehicle was struck by O'Mara Family Farms' vehicle, operated by O'Mara, Jr. (Exh. B, Complaint at ¶¶21-25). It is further alleged that Plaintiff sustained severe and permanent personal injuries (Exh. B, Complaint at ¶26) and that O'Mara Family Farms negligently entrusted their vehicle to O'Mara, Jr., despite him being unfit to operate a motor vehicle in the State of New York (Exh. B, Complaint at ¶¶44-47).
In Plaintiffs' Verified Bill of Particulars, dated September 13, 2018, Mrs. Miller alleges that she sustained the following injuries all of which began on or about May 9, 2017 (Exh. D, Verified Bill of Particulars at ¶9):
Plaintiffs admit that Mrs. Miller was not confined to bed or to her home; however, they do assert that Mrs. Miller was confined to a hospital during her treatment at the emergency room at Putnam Hospital Center following the accident (Exh. D, Verified Bill of Particulars at ¶¶15-17). Plaintiffs assert that Mrs. Miller was disabled and "incapable of performing her usual functions and responsibilities from the date of the accident to the present day and continuing" (Exh. D, Verified Bill of Particulars at ¶11). Additionally, Plaintiffs assert that O'Mara Family Farms "failed to take into consideration O'Mara [Jr.]'s prior history and experience and/or lack thereof as an operator of a motor vehicle ... [and] failed to properly evaluate O'Mara [Jr.]'s suitability, skills, confidence and experience prior to the time that the operation of the Farms Vehicle was entrusted to him" (Exh. D, Verified Bill of Particulars at ¶21).
On June 5, 2018, Mrs. Miller was deposed. She stated that no part of her body hit any part of the interior car when the accident occurred (Exh. E at 14:7-10). However, Plaintiff also stated that her vehicle was "pushed up a hill" off the road, "and then rolled back down off a curb into the intersection" (Exh. E at 24:11-21). Plaintiff asserted that she could not physically move out of the vehicle and that she was feeling pain in her left arm and neck immediately following the accident (Exh. E at 26:5-16). An ambulance arrived at the accident scene and Mrs. Miller was assisted out of her vehicle with a neck brace and back board (Exh. E at 29:12-25). Mrs. Miller was taken to the emergency room where she complained of neck, shoulder, and jaw pain, along with lightheadedness (Exh. E at 31:6-23). Plaintiff was not admitted to the hospital that day (Exh. E at 31:9-11) and was later discharged with no recommendations, prescriptions, or bandages (Exh. E at 32:16-33:7).
In the days following the accident, Mrs. Miller sought medical attention from a chiropractor, Ann Brandon, DC, whom she had seen in 2010 for a previous back injury (Exh. E at 36:24-37:25). Mrs. Miller also sought attention from Rennie Statler, DC, another chiropractor, who admittedly treated her consistently for running-related lower back and knee pain up until a few months before this accident (Exh. E at 38:23-39:25). In connection with Dr. Statler's office, during the summer of 2017, Mrs. Miller also received acupuncture from Inhwa Ann, L.Ac, twice a week for her shoulder (Exh. E at 52:4-53:9). At the time of her deposition, Mrs. Miller was still being treated once a week by Dr. Statler (Exh. E at 43:5-10).
Shortly after her initial visit with Dr. Brandon, Mrs. Miller consulted her internist, Nilo Herrera, MD, complaining of neck pain, arm pain, and "very, very bad headaches" (Exh. E at 43:18-44:23). Dr. Herrera prescribed physical therapy (Exh. E at 45:17-20). Mrs. Miller then received physical therapy in Katonah, New York twice a week during the summer of 2017. (Exh. E at 51:8-19). It was Dr. Herrera's opinion to a reasonable degree of medical certainty that Mrs. Miller was unable to work from the date of the accident until September 11, 2017 (Exh. 17, Herrera Affirmation at ¶4).
In subsequent visits to Dr. Herrera's office, Mrs. Miller was referred to a dentist for jaw pain and clicking (Exh. E at 46:21-47:4) and a neurologist for the headaches and nausea she was experiencing (Exh. E at 56:5-17). Through her various dental visits, Mrs. Miller was put on a liquid and soft food diet for about a month, used heat packs to heat her jaw multiple times a day for a month, and was given a night guard (Exh. E at 47:8-50:22). One dentist recommended a surgical procedure for Mrs. Miller's jaw pain; however, she declined to pursue this option because she "didn't trust his opinion" (Exh. E at 54:7-18). Subsequently, Mrs, Miller acted upon Dr. Hen-era's referral to see a neurologist and saw Paul Magda, DO, where she complained of headaches and nausea, but "mostly really, really bad headaches" (Exh. E at 57:9-14). An MRI of Mrs. Miller's brain was taken, and no known abnormalities were found (Exh. E at 57:22-58:4). However, Dr. Magda did "prescribe vestibular therapy for a concussion" (Exh. E at 58:10, Correction of Record at 80:15).
After the accident, Mrs. Miller asserted that she could not participate in those physical activities that she did before the accident occurred - specifically running, kayaking, and hiking (Exh. E at 62:22-63:4). At the time of her deposition, Mrs. Miller had resumed running, but not at the same distance as she previously did because of her neck pain (Exh. E at 63:5-8). Mrs. Miller claimed that she can only run three to eight miles, as opposed to her usual thirteen (Exh. E at 63:14-64:7). Additionally, at the time of her deposition, Mrs. Miller had not attempted to go hiking, and a physical therapist suggested that she not kayak (Exh. E at 65:11-20).
In her recent affidavit dated March 2, 2021, in response to this motion, Mrs. Miller further explained some of her injuries and the timeline of her treatment for the accident over the last four years. Mrs. Miller claims she returned to work on September 5, 2017, nearly four months after the accident (Miller Affidavit at ¶2). She had stopped physical therapy and vestibular therapy at that time, however she continued to have problems with her neck and jaw and experienced vertigo, dizziness, and nausea (Miller Affidavit at ¶3). Mrs. Miller asserts that her memory "improved somewhat, and then plateaued" (Miller Affidavit at ¶4). This led her to consult with another neurologist, Lindsey Neimand, MD.
In November 2018, Dr. Neimand ordered another MRI of Mrs. Miller's brain and prescribed vestibular therapy after Plaintiff developed a severe migraine with nausea and vomiting immediately after a chiropractic visit (Miller Affidavit at ¶¶3-4). Mrs. Miller discontinued her chiropractic treatment (Miller Affidavit at ¶3). At the time of this affidavit, Mrs. Miller claims that she still experiences TMJ, jaw pain, neck pain, has a decrease of motion in her neck, suffers from vertigo, and has memory issues (Miller Affidavit at ¶9).
The Court record reflects that Mrs. Miller saw other doctors and received other treatment in addition to the aforementioned. However, because the number of medical professionals involved in this case is astonishing, the Court will not discuss each of these medical visits at length.
On July 2, 2018, Rene Elkin, MD conducted a neurological independent examination of Mrs. Miller. Dr....
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