Published on:

On 12 March 2010, at approximately 9:15 a.m. on Albany Avenue

On 12 March 2010, at approximately 9:15 a.m. on Albany Avenue, Amityville, County of Suffolk, State of New York, personal injuries were allegedly sustained by plaintiffs as a result of a pedestrian knockdown or automobile accident with defendants. At the time of the automobile accident, plaintiff was a pedestrian and defendant individual was the operator of a 2009 Dodge Charger that was owned by a rental company, the defendant corporation.

Defendant individual’s girlfriend had rented the vehicle from the defendant corporation.
Allegedly, plaintiff who was a school security guard was struck by the front of defendants’ automobile when it was in the driveway in front of the school where plaintiff was working. Defendants’ vehicle entered the school driveway to drop off a child and was unable to back out of said one-way driveway due to a school bus pulling behind it.

Consequently, on 20 May 2010, a personal injury action ensued. Plaintiff contends that, when defendants’ vehicle was moving forward after being blocked by the school bus, it struck plaintiff in the area of his right knee, causing him to fall onto the hood of defendants’ vehicle. Plaintiff claims that he sustained several injuries, including a spinal injury. On the other hand, defendant individual claims that his vehicle never struck plaintiff and that the only contact between plaintiff and defendants’ vehicle was when plaintiff placed his hands on said vehicle to prevent defendant individual from moving the vehicle any further.

Defendants now 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 plaintiffs did not suffer a serious injury in the subject automobile accident as defined by New York State Insurance Law; and move for an order dismissing the action as against defendant corporation pursuant to the Graves Amendment, as there is no vicarious liability for leasing or rental car companies under New York Vehicle and Traffic Law. Plaintiffs oppose the motion.

The Ruling:

Under the rules, 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. 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. 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 of Appeals in the case of Toure v. Avis Rent-a-Car Systems stated that a plaintiff’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. Nonetheless, 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 nevertheless 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.

Here, the Queens defendants submit the pleadings, plaintiffs’ Verified Bill of Particulars and Supplemental Verified Bill of Particulars, the transcript of plaintiff’s Examination Before Trial (“EBT”) testimony, the transcript of plaintiff wife’s EBT testimony, the transcript of defendant’s EBT testimony, the transcript of non-party witness’ EBT testimony, the affirmed report of the doctor who performed an independent orthopedic examination of plaintiff on 2 June 2011, the rental car agreement entered into, the Police Accident Report and the Affidavit of the risk manager for defendant corporation.

As a rule, when moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. Within the scope of the movant’s burden, defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part..

Thus, the Court finds that defendants have established a prima facie case that plaintiff did not sustain serious injuries, that is, the alleged spinal injury, within the meaning of New York State Insurance Law.

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.

Plaintiffs then submit the affirmed report of a doctor who performed an MRI of plaintiff’s lumbosacral spine on 8 May 2010, the affirmed report of a doctor who performed an MRI of plaintiff Mariano Lopez’s right knee on July 14, 2010, the unaffirmed medical narrative reports of a doctor dated 18 March 2010, 15 April 2010, 12 May 2010 and 13 September 2010 and his affirmed medical narrative reports dated 18 July 2011 and 13 December 2011, the unaffirmed operative report of a doctor dated 5 August 2011, the affirmed medical narrative report of a doctor dated 16 January 2010 (with plaintiff’s EMG report dated 15 May 2010) and the unsigned report of a doctor dated 22 July 2010.

As stated, 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. Thus, the unsworn medical narrative reports are not sufficient to defeat defendants’ instant motion. Additionally, the unaffirmed operative report and the unsigned report are also not sufficient to defeat defendants’ instant motion. Even so, the 18 July 2011 and 13 December 2011 medical narrative reports were affirmed. The 18 July 2011 report indicates that plaintiff was seen that date in follow-up for injuries sustained as a result of a work related accident. On said date, range of motion tests performed on plaintiff’s lumbar spine indicated deviations from normal. Examination of plaintiff’s right knee revealed that patient has pain and tenderness over the medial joint line. The doctor’s assessment was lumbar spine lumbago, lumbar spine right side herniated nucleus pulposus, and right knee chondromalacia; that due to the subjective and objective findings, the patient is recommended physical therapy at a frequency of two time per week for six to eight weeks for exercise, ultrasound, electrical stimulation and massage therapy; and that the goal is to increase flexibility and decrease pain and increase motion. It is the doctor’s orthopedic opinion that the aforementioned occurrence is the competent producing cause of the injury, including the spinal injury, and disability sustained by this patient. Moreover, the affirmed medical narrative report dated 16 January 2010 indicates that plaintiff first presented to his office on 12 March 2010 and returned for re-examinations seven separate times between 26 April 2010 and 10 August 2011. At all of the visits, quantified and computerized range of motion tests performed on plaintiff’s lumbosacral spine indicated deviations from normal. Additionally, at all of the visits, tests performed on plaintiff’s right knee revealed pain. The doctor then concluded his reports stating that plaintiff remains partially disabled that and can no longer perform all duties, including lifting, bending, climbing or kneeling; that his concluding symptoms and disability are consistent with those of the doctor’s experience as well as the chiropractic, medical and automotive literature; that plaintiff has permanent ratable factors of disability that will affect his home and work activity; that plaintiff will have future pain and disability solely from the residual musculoskeletal dysfunction he suffered in the motor vehicle accident. The doctor opined to a reasonable degree of chiropractic certainty that a prognosis for a full and complete recovery is most certainly poor; that plaintiff is left with a permanent partial disability.

The court finds that plaintiffs failed to address defendants’ arguments with respect to dismissal of the action against the defendant corporation based upon the Graves Amendment. Thus, the portion of defendants’ motion for an order dismissing the action as against the defendant corporation pursuant to the Graves Amendment as there is no vicarious liability for leasing or rental car companies under New York Vehicle and Traffic Law is granted. However, with respect to plaintiffs’ claims of serious injury under the categories of permanent loss of a body organ, member, function or system; a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system and 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, the Court concludes that the acceptable evidentiary documentation presented by plaintiffs clearly raise genuine issues of fact as to injuries causally related to the motor vehicle accident. As a result, the portion of defendants’ motion for an order pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York granting them summary judgment and dismissing plaintiffs’ Verified Complaint is denied.

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