Maryann Agudio and an eight-year-old child, Janiece Robinson was driving Union Boulevard in Suffolk County
Maryann Agudio and an eight-year-old child, Janiece Robinson was driving Union Boulevard in Suffolk County when a vehicle driven by Warner Cooley hit them. The car was under Marcia Cooley’s name. Cases were filed against Mr. Cooley and Ms. Cooley. It was responded by a counter claim saying that it was Ms. Agudio, who was at fault in the accident. Ms. Agudio petitioned the court seeking a summary judgment saying that she was liable and that the eight-year-old Janiece Robinson did not sustain a serious injury in the context of insurance law.
Ms. Agudio had submitted to the court the transcripts of the claims, the counter claims and the answers. She also submitted a copy of the reports for the independent orthopedic examination performed on Janiece Robinson. The examination was done by Robert Israel M.D. on September 25, 2009. With her counsel, Janiece Robinson did not agree with the petition filed by Ms. Agudio. They asked for the dismissal of the case saying that Janiece did not sustain serious injuries as required by insurance law.
For a summary judgment to be granted the claimant must be able to show that all issues have been met and eliminated. There should be no issues that are presented that are deemed as needed to be decided on in a trail. With regard to the liability of Ms. Agudio, the child’s grandmother, she recounted the incident on April 5, 2004 at about 2:30 or 3:00 in the afternoon. She said that aside from Janiece her grandson, Michael Robinson, was also in the passenger seat. She stopped her vehicle at a red traffic light at the intersection of Carleton Avenue with Union Boulevard. This is the time that she noticed Mr. Cooley’s vehicle. A few seconds after, she said that Mr. Cooley’s car had struck the rear of her car. This had caused her vehicle to jolt forward. She claims that the light had not changed, it was still red. After they were hit, she pulled over at Union Boulevard and checked on her grandchildren. He approached the other car, and she was told by Mr. Cooley that he was in a hurry to pick up his son at school.
Janiece testified that she was sleeping when the accident happened. Beside her was her cousin who was one or two years old. She was jolted awake when the car was hit. This was also the time that she realized that there was a car accident.
In Mr. Cooley’s testimony, he said that he was driving on Carleton Avenue in a southbound direction. He was behind Ms. Agudio’s vehicle. He was unsure if the car was moving when he saw it or stopped, but he noticed that the traffic light was red so stopped behind the other car. He said that when the light turned green Ms. Agudio had let other vehicles pass her and the light turned red again and they remained stopped. When the light turned green, the next thing that he remembers was that she was going out of the car, and he did too. He said he asked if she was okay. He does not remember if Ms. Agudio told him that there was contact with their vehicles, but he insists there wasn’t. He also testified that he did not see anyone else inside the vehicle with her. They then went their own way without notifying the police. He also stated he did not notice any damage in the rear of her vehicle or the front of his car. He also believes that when he went to Allstate for repairs, he was given estimates for damages prior to the incident.
For the injuries, both submitted reports of Robert Israel M.D. about his examination of the infant. A serious injury defined by the insurance law, “means 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.” Significant meaning that their normal activities have been impaired. They were not able to do it.
In the testimonies, it appeared that Janiece had suffered back pains and head pains after the accident. Her mother Denise Robinson also said that she was not able to join gym for one month because of the pain in her back. She said all her activities were normal six months after the accident. This was the same for Ms. Agudio, though there was also evidence presented that she may have had the injuries prior to the accident. This was because she had been in another vehicle accident before. As for the infant, the doctor had said that it had its full range of motion, and it was normal. Both issues were not proven as have been covered as there are still questions as to the liability of Mr. Cooley, and it cannot be ascertained that the children did or did not suffer any serious injury just from the preliminary evidence presented. This cannot be ignored. Further examination and evidence need to be presented to determine it. For Mr. Cooley’s liability, there is his claim that the traffic light changed and quickly changed back. It may also be deemed that it was Ms. Agudio, fault that they got into the accident if the traffic light had turned green, and she did not move the car. That means that there is a shared negligence that may need to be decided by a trial. This has to be verified as well as the repair done to his vehicle after the incident happened. There are questions that exist, which need a trial. The petition for summary judgment was denied. Courts in Long Island and Manhattan have taken note.
