Zoldas v. Louise Cab Corp.

• Decision Date: 23 May 1985
• Citation: 489 N.Y.S.2d 468,108 A.D.2d 378
• Parties: Margie Cardinale ZOLDAS, Plaintiff-Respondent, v. LOUISE CAB CORPORATION and Irving Korn, Defendants-Appellants, and J. Moghadom Sarvghad, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 468

489 N.Y.S.2d 468

108 A.D.2d 378

Margie Cardinale ZOLDAS, Plaintiff-Respondent, v. LOUISE CAB CORPORATION and Irving Korn, Defendants-Appellants and J. Moghadom Sarvghad, Defendant.

Supreme Court, Appellate Division First Department.

May 23, 1985.

Philip B. Murphy, Rosedale, of counsel (Raymond G. Lawlor, New York City, attorney), for defendants-appellants.

Lawrence E. Pierce, New York City, of counsel (Fisher, Fallon, Salerno & Betlesky, New York City, attorneys), for plaintiff-respondent.

Before MURPHY, P.J., and SULLIVAN, BLOOM, MILONAS and ELLERIN, JJ.

SULLIVAN, Justice.

This is an appeal from the denial of a motion for summary judgment dismissing the complaint for failure to meet the threshold requirement of a "serious injury" as defined by the No-Fault Law (Insurance Law, sec. 671).

On May 28, 1978, at about 7:15 a.m., plaintiff was a passenger in a taxicab which collided with another motor vehicle at the intersection of West 53rd Street and Sixth Avenue, less than a half block from the West 53rd Street entrance to the Sheraton Centre Hotel, where she was employed as a waitress.

The police were summoned to the scene and spoke to plaintiff, who refused medical assistance. She walked the short distance to the hotel, but was then taken by a fellow employee to Roosevelt Hospital where she was examined and found to be in shock. Valium was prescribed, and plaintiff went home. Later that evening she took herself to the emergency room of New York Hospital, where she was x-rayed. Further medication was prescribed, as well as a cervical collar. Plaintiff returned to work one week later. She has never missed another day of work as a result of the accident, and continues to be employed as a waitress.

Three weeks after the accident plaintiff was examined by a neurologist, Dr. Klingon, who suggested that an EEG be taken. Dr. Guthrie, who administered the EEG, found the results to be normal. Plaintiff, still complaining of continued daily headaches and intermittent tingling of the fingers almost two years later, was reexamined on April 3, 1980 by Dr. Klingon, whose examination disclosed the presence of right upper cervical paraspinal tenderness with some restriction of neck movement. He prescribed a daily heat program. At present plaintiff's principal complaint is that she suffers from severe and constant headaches. She also complains of back and neck pain, as well as limitation of motion and pain in her right arm.

In May of 1981 plaintiff commenced this personal injury action against Louise Cab and Irving Korn, the owner and operator, respectively, of the taxicab, as well as the operator of the other vehicle. After joinder of issue and completion of discovery Louise and Korn moved for summary judgment dismissing the complaint for failure to meet the No-Fault Law threshold requirement of establishing a serious injury as defined in Insurance Law, sec. 671 Special Term granted the motion to the extent of directing preliminary trial on the issue. Since it is clear, as a matter of law, that plaintiff cannot demonstrate that she suffered a "serious injury" we reverse, grant the motion for summary judgment, and dismiss the complaint.

In enacting the No-Fault Law (L.1973, c. 13, eff. February 1, 1974) the legislature modified the traditional tort precepts for disposing of automobile accident claims and instituted a plan for compensating victims without regard to fault. (Montgomery v. Daniels, 38 N.Y.2d 41, 378 N.Y.S.2d 1, 340 N.E.2d 444.) The new legislation was intended to correct certain perceived infirmities under the common law system (id. at 49-53, 378 N.Y.S.2d 1, 340 N.E.2d 444), and was designed to assure that, without regard to fault, automobile accident victims were promptly and fully compensated at least for their "basic economic loss." (See Licari v. Elliott, 57 N.Y.2d 230, 234, 455 N.Y.S.2d 570, 441 N.E.2d 1088.)

In order to achieve this objective, and at the same time, to restrict the escalating cost of automobile insurance, the right of an injured person to sue for his injuries was limited to those who suffered serious injury. As the Court of Appeals noted in Licari:

There can be little doubt that the purpose of enacting an objective verbal definition of serious injury was to "significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium." (Memorandum of State Executive Dept., 1977 McKinney's Session Laws of NY, p. 2448.) "The verbal definition provided in the a reasonable restriction and further limitation on the right to sue, in order to preserve the valuable benefits of no-fault, at an affordable cost." (1977 McKinney's Session Laws of NY, p. 2450.) The Governor voiced his support of these policies when he signed the legislation into law. (NY Legis Ann 1977, pp 310-311; see, also, Matter of Granger v. Urda, 44 NY2d 91, 98, (Id. at 236-237, 455 N.Y.S.2d 570, 441 N.E.2d 1088.)

Thus, section 673 of the Insurance Law provides that, except in unusual circumstances, not here present, a person may not sue for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, except in the case of a "serious injury." In 1977 the legislature redefined serious injury after experience had shown that the original statutory standard was too easily met, thus defeating the No-Fault Law's avowed purpose of reducing automobile accident litigation. (See Memorandum of State Executive Dept., 1977 McKinney's Session Laws of N.Y., p. 2450.) The present subdivision 4 of Section 671 of the Insurance Law (L.1977, c. 892, sec. 8, eff. Dec. 1, 1977) defines serious injury as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member function or system; permanent consequential limitation of use of a body organ or member; 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

Where properly raised, the issue of whether a plaintiff is barred from recovery in the judicial forum for want of a serious injury is, in the first instance, for the court. As was noted in Licari v. Elliott, supra (57 N.Y.2d at 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088):

Since the purpose of the No-Fault Law is to assure prompt and full compensation for economic loss by curtailing costly and time-consuming court trials (Memorandum of State Executive Dept, 1977 McKinney's Session Laws of NY, pp. 2448, 2450), requiring that every case, regardless of the extent of the injuries, be decided by a jury would subvert the intent of the Legislature and destroy the effectiveness of the statute. The result of requiring a jury trial where the injury is clearly a minor one would perpetuate a system of unnecessary litigation. "the procedural system cannot find a way to keep cases that belong in no-fault out of the courthouse, the system is not going to work." (Schwartz, No-Fault Insurance: Litigation of Threshold Questions under the New York Statute--The Neglected Procedural Dimension, 41 Brooklyn L.Rev. 37, 53.) Thus, we believe the Legislature intended that the court should decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of subdivision 4 of section 671 of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide. (Id. at 237-238, 455 N.Y.S.2d 570, 441 N.E.2d 1088.)

Summary judgment is an appropriate vehicle for determining whether a plaintiff can establish, prima facie, a serious injury. (See Dwyer v. Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781; Nolan v. Ford, 100 A.D.2d 579, 473 N.Y.S.2d 516; Jones v. Sharpe, 99 A.D.2d 859, 472 N.Y.S.2d 779, aff'd. 63 N.Y.2d 645, 479 N.Y.S.2d 520, 468 N.E.2d 702.) Having properly raised the issue, defendants were entitled to a determination. Instead, Special Term directed an immediate trial on the issue. "Summary judgment is not a provision for an abbreviated trial of material issues of fact but merely a procedure for determining whether there are material issues of fact. Once it is determined that there are such issues of fact, summary judgment must be denied at least as to those material issues of fact." (Marshall, Bratter, Greene, Allison & Tucker v. Mechner, 53 A.D.2d 537, 384 N.Y.S.2d 787; see also, Southern Assoc. v. United Brands Co., 67 A.D.2d 199, 201, 414 N.Y.S.2d 560.) Special Term's direction must thus be deemed to be a denial of the motion, from which an appeal lies as of right. (See Vernitron Corp. v. CF 48 Assoc., 104 A.D.2d 409, 478 N.Y.S.2d 933.)

It is clear from the evidence submitted that defendants met their burden of coming forward with sufficient evidence, in admissible form, to warrant, as a matter of law, a finding that plaintiff had not suffered a serious injury within the contemplation of section 671 (See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Friends of Animals v....