This is a case where the court ruled that the motion by plaintiff for summary judgment on the issue of liability or fault but not as to serious injury is granted. However, the cross motion by defendant for summary judgment dismissing the complaint on the grounds that plaintiff has failed to sustain a “serious injury” within the meaning of Ins. Law §5102 is denied.
This is an action arising out of a hit in the rear car accident that occurred on May 15, 2003, on Glen Cove Road at or near Pound Hollow Road, Nassau County. Plaintiff was struck in the rear by defendant’s vehicle while stopped for a red traffic light. There is no claim that plaintiff had made any short or sudden stop or turn. Plaintiff’s examination before trial testimony states that plaintiff’s vehicle was stopped for a red traffic light. As the light turned to green but before he began his forward motion, plaintiff’s vehicle was struck in the rear by a vehicle driven by the individual defendant and owned by the corporate defendants. Defendant testified that at the time of the car accident, plaintiffs vehicle was stopped, his view was unobstructed and there was nothing that prevented him from coming to stop before hitting plaintiffs vehicle. Although defendant posits that plaintiff testified that the traffic light had turned to green as the impact occurred, it is clear that his foot was still on the brake and that he had not begun to move.
According to the Suffolk court, there is no competent evidence to dispute plaintiff’s evidence that defendant’s vehicle struck the plaintiffs vehicle in the rear. The submission in support of the motion by plaintiff has established entitlement to judgement thus shifting the burden to defendant to rebut the motion by submitting proof in evidentiary form showing the existence of triable issues of fact. Here the defendant has failed to establish the existence of triable issues of fact on the issue of liability or fault and the Court finds no material fact issues requiring a trial with respect to the issue of fault.
The court ruled that a driver of a vehicle approaching another vehicle from the rear is required 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.
The following vehicle was under a duty to maintain a safe distance between his vehicle and the vehicle ahead. Vehicle and Traffic Law § 1129 [a].Leal v. Wolff, 224 AD2d 392 (2d Dept. 2005). In opposition defendant relies solely on the EBT testimony of the parties. The affirmation of defendant’s attorney, which fails to rely on any personal knowledge, is lacking in evidentiary value. The Court has not considered the police accident report attached to the moving papers of plaintiff because it is hearsay and inadmissible unless a hearsay exception applies. Based on the foregoing, the motion by plaintiff for summary judgment on the issue of liability and fault, except for the issue of serious injury is granted.
The Court held that within the context of the defendant’s burden, when presented with claims which include shoulder injury or bulging or herniated discs, defendant through medical experts must demonstrate that such conditions are not causally related to the subject car accident or that they do not constitute a “serious injury”.
In the Bill of Particulars plaintiff alleges having sustained: right shoulder injury with impingement, disc bulges, radiculopathy, spasms, straightening of the spinal curvature and related sequelae.
In order to support their application for summary judgment, the defendants were compelled to present competent proof in admissible form demonstrating that plaintiff did not suffer a serious injury under any of the four categories cited.
Based on the foregoing the Court finds that defendants have failed to meet their burden of making out a prima facie showing that plaintiff did not suffer a “serious injury” under the Insurance Law. Insurance Law § 5102(d).
Where the defendant fails to meet the initial burden of establishing prima facie entitlement to judgment as a matter of law, the court need not consider whether the opposition papers are sufficient to raise a factual issue.
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