Posted On: February 6, 2013 by Stephen Bilkis

Accident at Jewel Avenue

This action arises from a motor vehicle accident which occurred on September 19, 2008, at approximately 5:30 p.m., in the eastbound lanes of the Grand Central Parkway, Queens, New York, at or near its intersection with the Jewel Avenue Exit. The accident involved a 2005 Porche Boxster owned and operated by plaintiff and a 1986 Volvo Station Wagon owned by defendant and operated by defendant driver. Plaintiffs commenced this action by the filing and service of a Summons and Verified Complaint.

A source said that, it is plaintiff’s contention that the accident occurred when his vehicle, moving slowly in stop and go traffic on the Grand Central Parkway, was struck in the rear by defendants' vehicle. Plaintiff claims that defendant driver admitted at his Examination Before Trial ("EBT") that he did not see plaintiff’s vehicle until the moment of collision and offered no explanation for said collision other than his failure to pay attention to the road. Plaintiff claims that defendant driver was the negligent party in that he failed his duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that defendant driver cannot come up with a non-negligent explanation for striking plaintiff vehicle in the rear.

A Lawyer said that, in opposition to plaintiffs' motion, defendants argue that, at his EBT, defendant driver testified that there were no brake lights illuminated on plaintiff’s vehicle just before the accident. Plaintiff submits that there is therefore an issue of fact as to the circumstances surrounding the accident and plaintiff’s motion should be denied. Defendants assert that a factual issue remains as to the extent that plaintiff’s comparative fault contributed to the happening of the subject accident by virtue of his failure to exercise ordinary prudence and to use such care to avoid the collision as an ordinarily prudent person would have under the circumstances.

A doctor said that, defendants move, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting them summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposed defendants' motion. Plaintiff moved pursuant to CPLR § 3212, for an order granting partial summary judgment as to the liability against defendants. Defendants oppose the motion.

The issue in this case is whether defendants’ motion for summary judgment should be granted on the ground that plaintiff did not sustained serious injury in the subject accident as defined by New York State Insurance Law.

The Court said that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court in 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. It is the existence of an issue, not its relative strength that is the critical and controlling consideration. The evidence should be construed in a light most favorable to the party moved against.

When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle pursuant to New York State Vehicle and Traffic Law ("VTL") § 1129(a). A rear end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle. Such a collision imposes a duty of explanation on the operator. Of course, in a rear-end collision, the front most driver has the duty not to stop suddenly or slow down without proper signaling, pursuant to VTL § 1163, so as to avoid a collision.

As noted, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Drivers must maintain safe distances between their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.

Plaintiff, in his motion, has demonstrated prima facie entitlement to summary judgment on the issue of liability against defendants. Therefore, the burden shifts to defendants to demonstrate an issue of fact which precludes summary judgment. After applying the law to the facts in this case, the Court finds that defendants have failed to meet their burden to demonstrate an issue of fact which precludes summary judgment. Defendants failed to submit any evidence to establish a non-negligent explanation for striking plaintiff Deutsch's vehicle in the rear.
Therefore, based upon the foregoing, plaintiffs' motion, pursuant to CPLR § 3212, for an order granting partial summary judgment as to the liability against defendants is hereby granted.
The Court will now address defendants' threshold motion. As a result of the subject accident described above, plaintiff claims that he sustained the following injuries: Cervical Disc Herniation and/or Displacement; C2-3 broad based central disc herniation tangent with the thecal sac; C3-4 disc bulging; C5-6 disc bulging;

C4-5 central disc herniation indenting the thecal sac narrowing both lateral recesses; C6-7 disc bulging indenting the thecal sac; C7-T1 central focal disc herniation indenting the thecal sac; Torticollis; Limitations to cervical range of motion; Muscle spasm & guarding - bilateral upper trapezius muscles; Muscle spasm & guarding - central paraspinal muscles; Cervicalgia.
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury."
In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians. However, unlike the movant's proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. The Court said that a plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.

Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

In the case at bar, laintiff claims that, as a consequence of the above described automobile accident, he has sustained serious injuries as defined in § 5102(d) of the New York State Insurance Law and which fall within the following statutory categories of injuries:
1) a permanent consequential limitation of use of a body organ or member; (Category 7)
2) a significant limitation of use of a body function or system; (Category 8)
3) 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. (Category 9).

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation. In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff's limitation to the normal function, purpose and use of the affected body organ, member, function or system.
Finally, to prevail under the "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" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" "which would have caused the alleged limitations on the plaintiff's daily activities." A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment." Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

With these guidelines in mind, the Court will now turn to the merits of defendants' motion. In support of their motion, defendants submit the pleadings, plaintiffs' Verified Bill of Particulars, the transcript of plaintiff EBT testimony, the affirmed report of the doctor, who performed an independent orthopedic medical examination of plaintiff, the affirmed report of the doctor, who reviewed plaintiff’s cervical spine MRI and the Health Insurance Claim forms submitted by plaintiff’s treating providers.

Defendants first assert that plaintiff’s admissions in his EBT testimony regarding the minimal treatment he received after the subject accident is evidence that he failed to sustain a "serious injury" as a result of said accident. Defendants state that "plaintiff testified that he did not tell the police he was injured, request an ambulance or go to a hospital after the accident. The first time he sought medical treatment was three or four days after the accident. A board certified orthopedic surgeon, conducted an examination of plaintiff on July 8, 2011. Said examination included an evaluation of plaintiff’s cervical spine and upper extremities. Range of motion testing, conducted by way of a goniometer, revealed normal findings. Based upon his clinical findings and medical record reviews, orthopedic surgeon diagnosed plaintiff with "cervical strain - resolved with preexisting degenerative changes." The doctor’s ultimate diagnosis of plaintiff was that "claimant is a 59-year-old male who alleges an injury of 09/18/08 as a seat belted driver. His prognosis is excellent. Currently, he shows no signs or symptoms of permanence relative to the musculoskeletal system and relative to the accident. He is currently not disabled. He is capable of his full time, full duty work as a real estate broker without restrictions. He is capable of his activities of daily living. He is capable of all pre-loss activities."

With respect to plaintiffs' 90/180 claim, defendants submit that plaintiff’s admissions at his EBT establish that he did not sustain an injury that prevented him from performing substantially all of the material acts that constituted his customary daily activities for at least 90 days of the 180 days immediately after the accident. Plaintiff testified that, at the time of the accident, he was employed as a real estate broker, that he was confined to his bed for two days and his home for a couple of weeks after the accident and the week after the accident he started doing work in his house. In addition, he quit that job to start his own business two years ago and worked 60-70 hours a week as he did before at Prudential. Furthermore, plaintiff is not claiming he was disabled for doing his normal activities for three months out of the first six months after the accident. Defendants also argue that the Health Insurance Claims forms submitted by plaintiff’s treating providers are further evidence that he did not sustain an injury which prevented him from working after the subject accident.

Based upon this evidence, the Court finds that defendants have established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

The burden now shifts to plaintiffs to come forward with evidence to overcome defendants' submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. To support his burden, plaintiff submits his Affidavit and that of his doctors. Plaintiff argues that the Affidavits of his physicians raise issues of fact as would preclude summary judgment. Plaintiff also submitted the certified medical reports of his doctor in support of their opposition to defendants' motion.

As previously stated, even where there is ample proof of a plaintiff's spinal injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. The Court finds that neither plaintiff nor his doctors adequately explained the cessation of plaintiff’s treatment after the accident.

Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff’s objective medical proof of limitations and permits dismissal of plaintiff’s Verified Complaint.

Additionally, plaintiff’s treating chiropractor failed to address the findings of defendants' radiologist, with respect to degeneration, and thus failed to raise a triable issue of fact. Furthermore, plaintiff’s subjective complaints of pain, without more, are insufficient to satisfy the burden of establishing a serious injury. Finally, plaintiff’s deposition testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Further, no where do plaintiffs claim that, as a result of plaintiff Deutsch's alleged injuries, he was "medically" impaired from performing any of his daily activities or that he was curtailed "to a great extent rather than some slight curtailment.".

Based on the above, the Court finds that plaintiff have failed to establish by competent medical proof that he sustained a "permanent consequential limitation of use of a body organ or member," a "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."

Accordingly, the Court held that defendants' motion, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting them summary judgment on the ground that plaintiff Deutsch did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d) is hereby granted and plaintiffs' Verified Complaint is dismissed in its entirety.

Are you involved in a motor vehicle accident, and had sustained serious injuries therefrom? Seek the help of a Queens Spinal Injury Attorney and Queens Personal Injury Attorney in order to assist you in filing a claim for damages. Call us at Stephen Bilkis and Associates, so our Queens Injury Attorney can handle your case.