SHORT FORM ORDER TRIAL/IAS PART 37. Plaintiff NASSAU COUNTY INDEX NO MOTION SEQUENCE:

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK PRESENT: HON. VICTOR M. ORT Justice YVONNE EVERIDGE Plaintiff -against - METROPOLITAN SUBURBAN BUS AUTHORITY JAMES WILLIAMS AND LONG-GUI WANG Defendants TRIAL/IAS PART 37 NASSAU COUNTY INDEX NO MOTION DATE: 09/06/O 1 MOTION SEQUENCE: The following papers read on this motion: Notice of Motion 1-21 Notice of Cross Motion for Summary Judgment Affirmation in Opposition to Motion for Summary Judgment Plaintiffs Memorandum of Law Affirmation in Partial Opposition to Cross-Motion Affirmation in Reply and in Further Support of Motion for Summary Judgment Reply Affirmation This is an action for personal injury caused by a motor vehicle accident. Defendants MTA Long Island Bus and James Williams are moving for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a serious injury as defined by $5102(d) of the Insurance Law. Defendant Long-Gui Wang is cross moving for sumrnary judgment 1

2 dismissing the complaint and all cross claims on the ground that plaintiff failed to sustain a serious injury and defendant was not negligent as a matter of law. The accident occurred on August 29, 1997 at approximately 8:30 a.m on Northern Boulevard at the intersection of Douglaston Parkway in Queens. Plaintiff Yvonne Everidge was a passenger on a bus owned by defendant MTA and operated by defendant Williams. Defendant Wang was the driver of another vehicle. Mr. Wang claims that he was stopped at a red light when his vehicle was struck in the rear by the bus driven by Mr. Williams. Plaintiff claims that as a result of the accident she sustained injury to her cervical and lumbar areas. A rear end collision into a stopped automobile creates a prima facie case of liability with respect to the operator of the moving vehicle, imposing a duty of explanation on the operator. Barile v. Lazzarini, 222 A.D.2d 635 (2d Dep t 1995). Based on his deposition testimony that the bus hit his car in the rear, defendant Wang has created a prima facie case that Mr. Williams was negligent and has thus imposed a duty on Mr. Williams to explain the accident. However, at his examination before trial, Mr. Williams testified that Mr. Wang s vehicle stopped short after cutting in front of the bus. Since defendants MTA and Williams have carried their burden of explaining how the accident occurred, the court concludes that triable issues of fact exist as to whether the two drivers were negligent and also, if both were negligent, their relative degrees of culpability. Section 5 104(a) of the Insurance Law provides that in order to recover for non-economic loss plaintiff must satisfy the threshold requirement that she sustained a serious injury as defined by the Insurance Law. Insurance Law injury which results in among other things (d) defines serious injury as a personal permanent loss of use of a body organ, member, 2

3 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. On a motion for summary judgment, it is defendant s burden to present sufficient evidence to demonstrate that plaintiff did not sustain serious injury within the meaning of Insurance Law $ 5102(d) as a matter of law. Schultz v. Von Voight, 86 N.Y.2d 865 (1995). However, the question of whether plaintiff suffered a serious injury is not always a question of fact which requires a jury trial. Licari v. Elliot, 57 N.Y.2d 230,237 (1982). Conclusory assertions of serious injury, including subjective complaints of pain, will not fulfill the statutory definition. But, where plaintiff submits objective evidence as to the extent of the limitation of movement a factual issue will be presented. Licari, 57 N.Y.2d at (emphasis in original). In support of their motion for summary judgment, defendants MTA and Williams submit an affirmation from Dr. Marlon Seliger, a neurologist who examined plaintiff on February 2, Dr. Seliger found that plaintiff had a full range of $motion of the lumbar spine. Based upon his examination, Dr. Seliger concluded that plaintiff has suffered cervical and lumbosacral sprains which were fully resolved. Defendants also submit the affirmation of Dr. Edward Toriello, an orthopedist who examined plaintiff on February 2,200O. Dr. Toriello found that plaintiff had a full range of motion of both the cervical and lumbar spine. Based upon his 3

4 examination, Dr. Toriello also concluded that plaintiffs injury was fully resolved. Defendant Long-Gui Wang also submits two letters from Dr. A. Robert Tantleff, a radiologist who reviewed an MRI which had been taken of plaintiffs lumbar spine on September 3, 1997 and another MRI which had been taken of plaintiffs cervical spine on September 8, Although opining that the MRI s were of low quality, Dr. Tantleff concluded that they showed no evidence of disc hemiation or bulging in either the lumbar or cervical spine. Defendants have established through the affirmations and reports of the various doctors a prima facie case that plaintiffs injuries were not serious within the meaning of As a result, the burden shifts to plaintiff to come forward with sufficient evidence to overcome defendants motions by demonstrating that she sustained a serious injury under the No-Fault Law. Gaddv v. Evler, 79 N.Y.2d 955 (1992). In opposition to the motion, plaintiff has submitted an affidavit from Dr. Joel Gottlieb, a chiropractor who treated plaintiff from shortly after the accident until January 28, On his initial examination of the patient on September 2, 1997, Dr. Gottlieb found significant limitation in the range of motion of the cervical spine. For example, left lateral flexion was 10 degrees as opposed to a normal range of 40 degrees, and left rotation was 20 degrees as opposed to a normal range 80 degrees. Lumbar motion studies also revealed a significant restriction. Notably, flexion measured 40 degrees as opposed to a normal range of 80 degrees, and right lateral flexion was 15 degrees as opposed to a normal range of 40 degrees. Plaintiff was treated by Dr. Gottlieb on approximately 3 1 occasions. According to Dr. Gottlieb, she terminated treatment in January, 1998 because she had reached a plateau and she felt the treatments were no longer helping her. Dr. Gottlieb examined plaintiff most recently on May 22,200l and found that she was doing much better at that time. 4

5 Nevertheless, Dr. Gottlieb was of the view that based upon the injury plaintiff had sustained she was disabled for approximately five months following the accident. Plaintiff has also submitted an affirmation from Dr. Eric Lubin, a radiologist who supervised the taking of the MRI s of plaintiffs lumbar and cervical spine in September, Based upon his review of the MRI s, Dr. Lubin concluded that plaintiff had bulging discs at L&L5 and C5-C-6. Evidence of a bulging or herniated disc, accompanied by a quantified limitation of the range of motion, creates a triable issue of fact as to whether plaintiff sustained a serious injury within the meaning of the No-Fault Law. Brown v. Stark, 205 A.D.2d 725 (2d Dep t 1994). However, plaintiff has not rebutted defendants showing that plaintiff did not suffer a permanent injury. Accordingly, defendants MTA and Williams motion for summary judgment and defendant Wang s cross motion for summary judgment are granted to the extent that plaintiffs claims based upon i) a permanent loss of use of a body organ, member, function or system, and ii) a permanent consequential limitation of use of a body organ or member are dismissed. Defendants motion and cross motion for summary judgment are denied in all other respects. SO ORDERED Dated: Sentember ENTE R ENTERE D SEP 14 zooi 5 NASSAU COUNTY OfflCE