Mondello v. Price
| Decision Date | 17 March 2021 |
| Docket Number | Index No. EF005303-2019 |
| Citation | 2021 NY Slip Op 33396 (U) |
| Parties | GEORGE L. MONDELLO, Plaintiff, v. RICHARD H. PRICE JR., WHEELS INC. and NEW YORK STATE ELECTRIC AND GAS CORPORATION, Defendants. |
| Court | New York Supreme Court |
To commence the statutory time period for appeals as of right (CPLR5513[a]), youare advised to serve a copy of this order with notice of entry, upon all parties.
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
HON CATHERINE M. BARTLETT, A.J.S.C.
The following papers numbered 1 to 8 were read on the Plaintiffs motion for partial summary judgment on liability and Defendants' cross-motion for summary judgment based upon the absence of "serious injury" as defined by Insurance Law §5102(d):
Upon the foregoing papers it is ORDERED that the motions are disposed of as follows:
This is a personal injury action arising out of an accident that occurred at about 2:00 p.m. on June 19, 2018 at the intersection of State Route 17A and Quarry Road in the Town of Goshen, New York. Route 17A, at this intersection, is a through highway with one lane in each direction. Quarry Road is governed at the intersection by a stop sign. Plaintiff George L. Mondello was traveling northbound on Route 17A at a speed of approximately 25 miles per hour. Defendant Richard H. Price Jr. was traveling eastbound on Quarry Road, stopped at the stop sign, and then turned left onto Route 17 A, whereupon the front passenger side of his vehicle struck the rear driver's side of Mr Mondello's vehicle. Plaintiff claims that as a result of the accident he sustained an exacerbation of pre-existing conditions of his right knee and lumbar spine.
Plaintiff moves for partial summary judgment on the ground that Defendant was negligent as a matter of law in failing to yield the right of way to Plaintiffs vehicle in violation of VTL §§ 1172(a) and 1142(a). Defendants cross move for summary judgment, asserting that the June 2018 accident resulted only in minor injury superimposed upon Plaintiffs acknowledged preexisting conditions, and that he sustained no "serious injury" causally related to that accident within the meaning of Insurance Law §5102(d). For the reasons set forth hereinbelow, the Defendants' motion is granted and Plaintiffs motion denied as moot.
The No-Fault Law precludes recovery for pain and suffering and other non-monetary detriment unless the plaintiff sustained a "serious injury" causally related to the motor vehicle accident at issue. Insurance Law §5104(a). While the plaintiff ultimately bears the burden of proof of serious injury, the defendant, as the proponent of a summary judgment motion, "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985).
An aggravation of a pre-existing condition or injury may constitute "serious injury" per Insurance Law §5102(d). Nevertheless, the defendant may establish prima facie entitlement to summary judgment by presenting "persuasive evidence that plaintiffs alleged pain and injuries were related to a preexisting condition" (Pommells v. Perez, 4 N.Y.3d 566, 580 [2005]), and "were not caused or exacerbated by the subject accident." Sanclemente v. MTA Bus Co., 116 A.D.3d 688, 688-689 (2d Dept. 2014). See, Little v. Ajah, 97 A.D.3d 801, 802 (2d Dept. 2012); Rodgers v. Duffy, 95 A.D.3d 864, 866 (2d Dept. 2012); Edouazin v. Champlain, 89 A.D.3d 92, 894-895 (2d Dept. 2011); Pero v. Transervice Logistics, Inc., 83 A.D.3d 681, 683 (2d Dept. 2011); Rabinowitz v. Kahl, 78 A.D.3d 678 (2d Dept. 2010); Catania v. Hussain, 78 A.D.3d 639 (2d Dept. 2010); McKenzie v. Redl, 47 A.D.3d 775, 776-777 (2d Dept. 2008). Where the defendant has demonstrated prim a facie that the plaintiffs condition was not caused or exacerbated by the subject accident, the plaintiff must, to survive summary judgment, "explain, in a specific and nonconclusory manner, how the subject accident exacerbated the plaintiffs pre-existing condition." Inzalaco v. Consalvo, 115 A.D.3d 8077, 808-809 (2d Dept. 2014). See also, Boroszko v. Zylinski, 140 A.D.3d 1742, 1743-45 (4th Dept. 2016); Kendig v. Kendig, 115 A.D.3d 438, 439 (1st Dept. 2014); Nova v. Fontanez, 112 A.D.3d 435, 436 (1st Dept. 2013).
Even if objective medical proof of injury exists, the chain of causation between the accident and the claimed injury may be broken by, e.g., "a gap in treatment, an intervening medical problem or a pre-existing condition." Pommells v. Perez, supra, 4 N.Y.3d at 572.
Where the defendant has presented persuasive expert medical evidence that the plaintiffs alleged pain and injuries were related to a pre-existing condition or to a prior or subsequent accident, the plaintiff must address the defense expert's findings and present competent, non- conclusory expert evidence that the claimed injury was proximately caused by the accident at issue, and not by a different accident or by a pre-existing condition. See, e.g., Pommells v. Perez, supra, 4NY3d at 580; John v. Linden, 124 A.D.3d 598, 599 (2d Dept. 2015); Henry v. Hartley, 119 A.D.3d 528, 529 (2d Dept. 2014); II Chung Lim v. Chrabaszcz, 95 A.D.3d 950, 951 (2d Dept. 2012); Chery v. Jones, 62 A.D.3d 742, 742-743 (2d Dept. 2009). In such circumstances, the plaintiffs physician's failure to address prior accidents and/or pre-existing conditions affecting the same area of the body renders his conclusions regarding causation speculative and insufficient to raise a triable issue of fact. See, Devito v. Anatra, 189 A.D.3d 1175, 1176 (2d Dept. 2020); Gash v. Miller, 177 A.D.3d 950 (2d Dept. 2019); Varveris v. Franco, 71 A.D.3d 1128, 1129 (2d Dept. 2010); Maffei v. Santiago, 63 A.D.3d 1011, 1012 (2d Dept. 2009); Jules v. Calderon, 62 A.D.3d 958 (2d Dept. 2009); Joseph v. A and H Livery, 58 A.D.3d 688, 688-689 (2d Dept. 2009); Sapienza v. Ruggiero, 51 A.D.3d 643, 644 (2d Dept. 2008); Tudisco v. James, 28 A.D.3d 536, 537 (2d Dept. 2006); Bennett v. Genas, 27 A.D.3d 601, 601-602 (2d Dept. 2006); Barnes v. Cisneros, 15 A.D.3d 514, 515 (2d Dept. 2005).
Finally, in Pommells v. Perez, 4 N.Y.3d 566 (2005), the Court of Appeals observed that a gap in treatment may "interrupt the chain of causation between the accident and claimed injury" such that summary dismissal of the complaint may be appropriate. Id., at 572. The Court proceeded to hold that "[w]hile a cessation of treatment is not dispositive - the law surely does not require a record of needless treatment in order to survive summary judgment - a plaintiff who terminates therapeutic measures following the accident, while claiming 'serious injury,' must offer some reasonable explanation for having done so." Id., at 574 ().
The question here is whether Plaintiff sustained a permanent consequential limitation, or significant limitation of use, of his right knee and/or his lumbar spine that is causally related to the June 19, 2018 motor vehicle accident.[1]
Plaintiff, 73 years of age at the time of the accident, had longstanding pre-existing conditions of his right knee. He underwent surgery to his right knee in 1976, and reinjured the knee in a fall on September 17, 2017, prior to the June 2018 motor vehicle accident at issue here. Per the radiologist's report, a post-accident MRI taken on July 25, 2018 (ca. five weeks post-accident) revealed pre-existing conditions and degenerative changes, but no evidence of traumatically induced injury:
Examination on July 25, 2018 revealed good active range of motion of the right knee (to 125°).
Plaintiff also had longstanding pre-existing conditions of his lumbar spine, going back to compressed discs in the 1970's. His medical records reflect an episode of low back pain in July of 2015. An x-ray of the lumbar spine taken on June 26, 2018 (one week post-accident) revealed a "large right lateral spur bridging the L2 and L3 vertebral bodies," but "no evidence of acute lumbar spine fracture."
As a result of the June 19, 2018 motor vehicle accident, Plaintiff missed four (4) days from work. His shift was reduced from six hours to four hours in consequence of back pain. He attended physical therapy for approximately nine (9) months from July 2018 to March 2019. Much of the therapy was devoted to Plaintiffs cervical and thoracic spine, concerning which he herein alleges no injury. The physical therapy / chiropractic records reflect consistent improvement in range of motion of the lumbar spine. Plaintiff declined proffered cortisone injections, and after ...
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