Present: HON. DANIEL PALMIERI Acting Justice Supreme Court -~~_~--~-~-~ ~-~~----------------~~----~---~~~~~~~~~~~~~~~~~~~~~~~~~~~~ TRIAL PART: 34 NELSON FLORES, NASSAU COUNTY -against- Plaintiff, INDEX NO: 018999-00 MOTION DATE: 3-21-03 TRANSPORTATION TECHNIQUES, INC., MOTION SEQ. NOS: KENNETH S. URBAN, JR. and FRANK BENDL, 003,004, & 005 Defendants. The following papers having been read on this motion: Notice of Cross-Motion, (Deft. Bendl) dated 2-27-03............... 1 Notice of Cross-Motion, (Plaintiff) dated 5-02-03.................... 2 Notice of Cross-Motion, (Defts Transportation and Urban) dated S-15-03......................................................................... 3 Supplemental Affirmation, (Deft-Bendl) dated 5-21-03... 4 Affirmation in Opposition, (Plaintiff), dated 7-25-03............ 5 Affirmation in Reply, (for Defts Transportation & Urban) dated 7-29-03.......................................................................... 6 Sur-Reply, (Plaintiff), dated 7-31-03............................. 7 The original motion (Sequence # 2 ) made herein by defendants Transportation Techniques, inc. and Urban has been withdrawn pursuant to letter from their counsel dated, May 14, 2003. The cross-motions of defendant Bend1 (Sequence # 3) and plaintiff (Sequence # 4) are granted as to the issue of liability only. Summary judgment is granted in favor of defendant Bend1 dismissing the complaint and all cross-claims as to him and in favor or plaintiff as to defendants Transportation Techniques and Urban (hereinafter referred to as defendants) on the issue of liability only and not as to serious injury. On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of
law (see Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986), Rebecchi v, Whitmore, 172 AD2d 600, (2nd Dept. 1991). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Frank Corp. v. Federal Ins. Co., supra at 967; GTF Mktg. V. Colonial Aluminum Sales, 66 NY2d 965 (1985), Rebecchi v. Whitmore, supra at 601. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist (see Barr v. County ofalbany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312,317 (2nd Dept. 1989)]. The submissions in support of the cross motions of defendant Bend1 and the plaintiff established their entitlement to judgment thus shifting the burden to the opponent to rebut the movant s case by submitting proof in evidentiary form showing the existence of triable issues of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980); Friends of Animals v. Associated Fur Manufacturers, inc., 46 NY2d 1065 (1979). Here, defendants have failed to establish the existence of triable issues of fact, the cross motions are granted on the issue of liability only, not as to serious injury. The undisputed facts--are-that this action arises from a collision which occurred on July 1, 1998. The plaintiff was a passenger in a vehicle that was stopped in traffic and struck in the rear by the defendant s vehicle.plaintiff s vehicle was then propelled into the rear of the Bend1 vehicle which was also stopped in traffic. Defendants have not submitted an affidavit from any person having knowledge of the facts or any other competent evidence to refute this version of the events. 2
Based upon this record, the Court finds no material issues of-fact requiring a trial with respect to the actions of the parties involved in the cause of the accident. In response to this motion, defendants have failed to rebut the facts surrounding the happening of this accident and have not submitted evidence sufficient to rebut an inference of negligence created by a collision with a stopped vehicle. Viewing the evidence in the light most favorable to the opposing party and according defendants every reasonable inference, the Court finds that a jury could not find negligence on the part of plaintiff or defendant Bendl. A driver is under a duty to maintain a safe distance between his/her vehicle and the vehicle operated in front, VTL 5 1 129 (a) and a collision with a stopped vehicle establishes a prima facie case of negligence and imposes a duty on the operator of the following vehicle to explain how the accident occurred. Hanak v. Jani, 265 AD2d 453,(2d Dept.1999). Here, defendants have failed to come forward with any evidence to inculpate negligence on the part of plaintiff and defendant, Bendl, they are therefore entitled to judgment as a matter of law. Benvarko v, Avis Rent a Car System, 162 AD2d 572 (1990); Abramowicz v. Roberto, 220 AD2d 374 (1995); Lea/ v. Wolff, 224 AD2d 392 (1996), Leonard v. City of New York, 273 AD2d 205 (2d Dept. 2000). The uncontrovet-ted facts clearly establish that the negligence of defendants was the sole and only cause of the accident. Defendant s cross-motion for summary judgment pursuant to CPLR 5 3212 dismissing the complaint based on the failure each of the plaintiff to have sustained a serious injury under Insurance Law 5102 is denied. Defendant alleges that plaintiff has not sustained a serious injury as defined by Insurance Law 5 5102(d) and as such has no cause of action under New York Insurance Law 5 5104(a). On the issue of serious injury, the movant must establish his or her cause of action 3
or defense sufficient to warrant a court directing judgment in its favor as a matter of law. Junco v. Ranzi, 288 AD2d 440 (2nd Dept., 2001). Serious injury is defined by New York State Insurance Law 35102(d) 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. Defendants argue that plaintiff did not sustain a serious injury as defined by any section of the statute. In addressing the serious injury issue as defined by the New York State Insurance Law, the Court first looks at the pleadings. Plaintiff alleges in his Bill of Particulars, as supplemented by his deposition testimony, a copy of which has been submitted by defendant, to have sustained inter alia a torn meniscus in the left knee with associated sequelae and that he was confined to his bed and could not walk for at least six months after the accident. Defendants application is supported by an affirmation of Dr. Cataletto, an orthopedist who examined the plaintiff on behalf of the defendants. Dr. Cataletto found soft tissue injuries to plaintiff s cervical spine, lumbar spine and left elbow, all supported by objective tests. However, as to plaintiff s left knee, he merely notes that plaintiff underwent a partial medical menisectomy with anterior cruciate reconstruction on May 24, 1999 without addressing plaintiff s claim that his knee injury was a result of the accident less than a year earlier. 4
Since a torn meniscus may constitute evidence of serious injury, a defendant must demonstrate that it did not exist or that it is not causally related to the accident. Rangel- Vargas v. Morales, 289 AD2d 92 (1 st Dept. 2001), DeAngelo v. Fide/ Corp. Services, inc., 171 AD2d 588 (1 St Dept. 1991), Nelson v. Wo-Sing Shin Press, Inc., NYLJ December 14, 2000 (App. Term). See also Derival v. New York City Transit Authority, 289 AD2d 281 (2nd Dept. 2001), Sm ith v. Knott, 287 AD2d 729 (2001). Here the doctor examining on behalf of defendants did not see any MRI studies of the knee, and has not demonstrated or even addressed the issue of whether the knee injury and surgery were causally related to the accident. Asta v. Eivers, 280 AD2d 565 (2nd Dept. 2001) Derival v. New York City Transit Authority, supra. See also, West v. Rivera, 286 AD2d 327 (2nd Dept. 2001). Hence, there was a failure by the defendants to demonstrate that plaintiff did not sustain a serious injury and that his knee injury was not causally related to the accident. Consequently defendant has failed to meet its burden. Mo iseau v. Dumas- Williams, 291 AD2d 535 (2nd Dept. 2002), Klimis v. Lopez, 290 AD2d 538 (2nd Dept. 2002), Gamberg v. Romeo, 289 AD2d 525 (2nd Dept. 2001), Hussein v. Littman, 287 AD2d 543, (2nd Dept. 2001). Defendants claim, raised for the first time in reply that there is an unexplained gap in treatment has been properly rebutted by a showing that treatment of plaintiff s knee injury continued until well after his surgery, including months of physical therapy, and until his no fault benefits were exhausted. There was no gap in treatment of plaintiff s knee injury and to the extent that there was any post surgical treatment gap, it has been adequately explained. See Black v. Robinson, AD2d,759 NYS 2nd 741 (2nd Dept. 2003). When a moving defendant fails to make a prima facieshowing of entitlement to relief, it is not necessary to consider whether the opposing papers are sufficient to raise an issue of fact. Roland v. Dig America Inc., 277 AD2d 337 (2nd Dept. 2000), Sabates-Dominguez 5
I- :- ~_ v. G reenwa ld,278 298 AD t. (2nd ep D) r, 2000 oweve ni H s on tiffi in af ss ip m sub u on itia s oppo le iabtr se i ar a To he f qua t ce o iden ve ti evjec ide ob ov r o t p ed ri equ r s tiff in i la a pt, acf f ue ss oi se o se po and r pu u, ontic unl fa rm he t no s based onti ait upon mli r her s i oh. s rt pa Toure v. Av is Ren t A Ca r Sys tems 2d Inc NY.,), 345 98 2002 ( Scudera v. M ahbubun, 299 2d ). AD 2002 535 t. (2nd ep D ub s s ha tiff ni al P al ed t peatr ce o den i ev m o frx nglti esu r het her t ies r oju in Toure v. Av is Ren t A Ca r Sys tems, supra, cf. Mv. Ke onelltt er, e 281 2d AD 523 t. ep (2nd D), 2001 cf. C respo v. K rame r, 2d 295 ). AD 2002 467 t. (2nd ep D o de ill m osom r. D ra f t cf f se r o cou s oue ss i sys r on tico un f ego r of he t C). f June 2002 v. t. Gone t,298 d r2d Dep 3( AD 811 Based on. ied den s u itt s on s i c Th ENTE R DATED: August 14, 2003 Acting J.S.C.
TO: SMETANA, SCHWARTZ & McKEOWN Attorneys for Defendant BENDL 48 South Service Road Suite 201 Melville, NY 11747-2335 ATT: RONALD A. SCHWARTZ, ESQ. SANFORD L. PIROTIN, P.C. Attorney for Plaintiff 323 Madison St. Westbury, NY 11590 ATT: SANFORD L. PIROTIN, ESQ. JEREMY S. TISHLER, ESQ. and LAW OFFICE OF VINCENT D. McNAMARA Attorneys for Defendants TRANSPORTATION & URBAN 1045 Oyster Bay Rd. East Norwich, NY 11732 ATT: ANTHONY MARINO, ESQ. 7