- - - - - - - - - - - - - - - - - - - - - - -- - - - SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU DWAYNEA. JOHNSON -against - Plaintiff --- x MELISSA L. ROSE, JOHN F. ROSE and ELAINE H. ROSE Defendants. -------------------------------------------------------------------- x Papers Read on this Motion: Defendant' s Notice of Motion Defendants' Memorandum of Law Defendants' Memorandum of Law if Summary Judgment is Denied Plaintiffs Notice of Cross-Motion Defendants' Affrmation in Opposition MICHELE M. WOODARD, TRIAL/IAS Part 18 Index No. : 10834/05 Motion Seq. No. : 02 & 03 DECISION & ORDER Defendants MELISSA L. ROSE, JOHN F. ROSE and ELAINE H. ROSE, hereinafter referred to as " MELISSA ROSE" JOHN ROSE", AND "ELAINE ROSE, respectively, move by Notice of Motion pursuant Insurance Law 95102(d) for Summar Judgment. The plaintiff DWAYNE A. JOHNSON, hereinafter referred to as " MR. JOHNSON", cross-moves for Summar Judgment against the defendants on the issue of liability. Plaintiff commenced this action for injuries allegedly sustained in an automobile collision that occurred on August 4 2002 at 7:35 P.M. at or near the intersection of Ring Road and Old Country Road in Nassau County, New York. Plaintiff was the owner/operator of his vehicle. Defendant MS. E. ROSE was the operator of the vehicle owned by both herself and defendant MR. ROSE. PlaintiffMR. JOHNSON' s Deposition (see Exhibit D annexed to defendants' motion) Page 1 of 5
reveals the following (the page numbers refer to Exhibit D). MR. JOHNSON was taken by ambulance to Winthrop University Hospital (p. 26); he was admitted overnight, given pain medication and released the next day (pgs. 28-31); he did physical therapy five (5) times a week for four (4) months through Dr. Trimba (pgs. 31-34); he also saw a chiropractor and an acupuncturist at Dr. Trimba s rehab center (pgs. 34-36); he consulted Dr. Melissa Silver, a chiropractor, one year after plaintiff stopped treatment at Dr. Trimba s rehab center (which stopped in late 2003 or early 2004) for treatment once a week to once or twice a month through at least May, 2006, the time of plaintiff's deposition (pgs. 41-44); plaintiff missed four (4) months of work (pg. 47-48); Dr. Trimba provided the notes excusing plaintiff from work (p. 48); plaintiff received a neck collar, portable electrical system, a whirlpool, and a pilow from Dr. Trimba (pgs. 57-58). Defendants have offered the sworn report of Dr. Varkes Khachadurian, hereinafter referred to as "Dr. Khachadurian, an orthopaedist, dated July 12 2006 (see Exhibit E annexed to defendants' motion). Dr. Khachadurian states that plaintiff has reached his pre-collsion state, and he has no evidence of an orthopaedic disability related to the collsion with all strains and sprains resolved. While Dr. Khachadurian stated that the plaintiff had a normal range of motion of the lumbar and cervical spine setting forth the ranges, Dr. Khachadurian did so without setting forth the objective testing performed to arrive at his conclusion see Cohen v A One Products, Inc. 34 AD3d 517 (2d Dept 2006); Faun Thai v Butt 34 AD3d 447 (2d Dept 2006); Cardilo v Xenakis 31 AD3d 683 (2d Dept 2006). Dr. Khachadurian also relies on the unsworn reports of other physicians that are not on the record here see Jackson v Colvert 24 AD3d 420 (2d Dept 2005). Thus, Dr. Khachadurian s report should not be considered. Page 2 of 5
A defendant seeking to dismiss an action on the threshold question must make a prima facie showing that MR. JOHNSON' s alleged injuries fail to establish a serious injury, see Brannan v Brownsell 23 AD3d 11 06 (4th Dept 2005). Until the defendant establishes its entitlement to Judgment as a matter of law, the burden does not shift to the plaintiff to raise an issue of fact, and the defendant' s motion for summary relief must be denied see Loveless v American Ref-Fuel of Niagara, LP, 299 AD2d 819 (4th Dept 2002). Here, defendants have not met their burden. As to Dr. Trimba s affrmation (see Exhibit B annexed to plaintiff's cross-motion), the Court finds that it is not acceptable pursuant to CPLR 92106. Dr. Trimba, as a medical doctor, is not required to have his affirmation notarized as are others such as chiropractors but the affirmation failed to set forth that the statements therein were true under the penalties of perjury as required under CPLR 92106 see Offman v Singh 27 AD3d 284 (1st Dept 2006). Dr. Trimba does not even refer to CPLR 92106 at all. Dr. Trimba merely states his affirmation is "duly sworn. " Thus defendants are correct in their assertion that Dr. Trimba s affirmation should not be considered. However, since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not consider whether the papers submitted by plaintiff in opposition were sufficient to raise a triable issue of fact see McDonald v Pookie Hacking Corp. 37 AD3d 430 (2d Dept 2007); Ramsey v Kaszuba 36 AD3d 681 (2d Dept 2007). The Court wil now consider the plaintiff's cross-motion for Summary Judgment on the issue of liability. MR. JOHNSON contends the light was green for cars going in his direction; he states he first saw the traffic signal 100 yards from the intersection (see Exhibit G, p. 12 annexed to plaintiff's cross-motion); he contends the speed of his vehicle when he first saw the traffic light was 30 mph (see Exhibit G, p. 14) and at impact (p. 20); he states the light stayed green for plaintiff from when Page 3 of 5
(p., p. he first saw it until the collision (p. 16); he states he never saw MS. E. ROSE' s vehicle until contact 16-17). MR. JOHNSON stated he was going westbound on Ring Road (see Exhibit D, pg. 9 annexed to defendant' s motion). Plaintiff planned to go " straight through" to Stewart Avenue (p. 11). ELAINE ROSE states she was traveling on Ring Road going eastbound going to make a left onto a road that was perpendicular to Old County Road (see Exhibit H, p. 18 anexed to MR. JOHNSON' cross-motion). That is, ELAINE ROSE sought to make a left to the exit road of Roosevelt Field at or near Old Country Road; she testified her top speed on Ring Road was 25-30 MPH (Exhibit H 27); she estimated plaintiff's vehicle was traveling 40 to 50 MPH (Exhibit H, pg. 37); she stated she told someone the day after the collision the plaintiff's vehicle was speeding (Exhibit H, pg. 36). The Court takes judicial notice that the posted speed limit on Ring Road, a road that surrounds Roosevelt Field, a large shopping mall, is 25 MPH and has been for quite a while. MS. E. ROSE alleges she was in the intersection with a "yellow" left turn arrow (see Exhibit, pg. 23, 31). She also testified that she saw two vehicles westbound (the direction plaintiff was traveling), one was stopped in the right hand turn lane and one approaching in the left laneplaintiff's vehicle (see Exhibit H, pg. 25,.26 anexed to MR. JOHNSON' s cross-motion). If ELAINE ROSE' s version is given full credibility, her green to yellow signal and the stopped westbound right hand turn auto would indicate that all the westbound traffc had a red traffic signal (the westbound right lane traffic would be stopped to allow the eastbound-left turning cars such as ELAINE ROSE' s vehicle, to turn left into the intersection without the straight through traffic-such as plaintiff's vehicle- as well as the westbound right turn vehicles). Thus, ELAINE ROSE contends plaintiff "ran" a red light (or was he attempting to "time" its change) while speeding up to twice the posted speed limit of 25 MPH. Page 4 of 5
..! ( Here, there are issues of fact as to whether the plaintiff could have avoided the collision had he been driving at the posted speed limit instead of the speed alleged by ELAINE ROSE and if he had seen ELAINE ROSE' s vehicle in the intersection. Even a driver proceeding on a green light is not authorized to proceed blindly and wantonly without reference to another automobile but is bound to use such care to avoid a collision as an ordinar prudent man would have used see Sontag v Mulkerin 63 AD2d 699 (2d Dept 1978). Generally, questions of credibility should not be determined on motions for Summary Judgment; such is an issue reserved for the trier of fact see Republic Long Island, Inc. v Andrew J Vanacore, Inc. 29 AD3d 665 (2d Dept 2006). That is the case here as to the two differing versions of the event. Based on the abovementioned, the motion by defendant for Summar Judgment is DENIED; plaintiffs cross-motion is DENIED. This constitutes the DECISION and ORDER of this Court. DATED: April 11, 2007 Mineola, N. ENTER: /i --- HON. MICHELE M. WOODARD NTERED APR 1 6 2007 NAMAU OC.aI 0"" Page 5 of 5