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Peralta v. Quintero

United States District Court, S.D. New York

January 26, 2015

LUIS E. QUINTERO, et ano., Defendants

For Alvin Peralta, Plaintiff: Joshua Brian Irwin, LEAD ATTORNEY, Gregory J. Cannata, Esq., New York, NY.

For Luis E. Quintero, Daniel J. Gonsalves, Defendants: John M. Downing, Jr, LEAD ATTORNEY, Downing & Peck, P.C., New York, NY.


FRANK MAAS, United States Magistrate Judge.

This personal injury action was removed to this Court from Supreme Court, Bronx County, on May 15, 2012. The defendants did not file a jury demand until 588 days later. In the absence of any rationale for their delay other than mere inadvertence, I found that the defendants had waived their right to a jury trial. The case then was tried before me on January 7-9 and 13, 2014. On May 20, 2014, after considering the evidence at that trial, as well as the parties' post-trial submissions. I made findings of fact and conclusions of law with respect to the issues of liability and damages pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. (See ECF No. 85). Because neither side had ordered the trial transcript, I did so based on my recollection of the trial testimony.

Subsequently, the Defendants moved under Rule 52 of the Federal Rules of Civil Procedure for an order " vacating and reversing" my prior Memorandum Decision and Order and dismissing this action. (ECF No. 87). Defense counsel did so without the benefit of a trial transcript, advancing claims that were inconsistent with my own recollection. Accordingly, I directed defense counsel to order the transcript and set a briefing schedule. (ECF No. 96). Having reviewed the transcript, I now make minor modifications to my prior findings and conclusions in this Amended Memorandum Decision and Order. I also address the Defendants' post-trial motion. For the reasons set forth below, I still find the Defendants liable for the accident and award the damages previously determined, subject to any statutory set-off for collateral sources to which the Defendants may be entitled.

I. Liability

A. Findings of Fact

On March 6, 2010, shortly before midnight, plaintiff Alvin Peralta (" Peralta") was driving his 1992 Honda Accord northbound on Eldridge Street on the lower east side of Manhattan. His friend Melvin J. Sanchez (" Sanchez") was in the front passenger seat of the car. (Tr. 54, 116-17; Ex. 3).[1]

As Peralta approached the intersection of Eldridge and Rivington Street, a 2006 Volkswagen Jetta driven by defendant Luis Quintero (" Quintero") was traveling westbound on Rivington Street and was approaching the Eldridge Street intersection. (Tr. 54-55; Ex. 3). The owner of the Jetta. Daniel Gonsalves (" Gonsalves") was in the front passenger seat. (Tr. 120; G. 10).

The parties agree that there was a stop sign on Rivington Street, but not on Eldridge Street, where the two streets intersected. (Tr. 39, 52-53; Ex. 3). The parties further agree that both streets are one-way streets. (Tr. 53). Whether Quintero stopped at the stop sign and what happened afterwards are the critical liability issues. Peralta contends that Quintero failed to yield to his passing vehicle and " crashed" into the passenger side of the Accord with a " big impact, " causing the vehicle to move to the left and a passenger side air bag to inflate.[2] (Id. at 117, 120, 146-47, 154). Peralta further contends that the impact was sufficient to cause both passenger-side doors of his Accord to deform, although they still could be opened and closed with difficulty, and that the vehicle's alignment was adversely affected. (Id. at 118-19, 159-60). Peralta testified that he disposed of the vehicle by taking it to a junk yard after a month or two because it was " not safe to drive." (Id. at 145).

Quintero testified, to the contrary, that he came to a full stop and was inching into the intersection to make a right turn when Peralta's car suddenly swerved around him. (Id. at 55, 57, 64-65). He described the Accord's speed as faster than normal, but conceded that he did not know if Peralta was traveling more than thirty miles per hour. (Id. at 63-64). Curiously, Quintero maintains that there was no accident. (Id. at 56, 65). According to Quintero, even though he could have continued on Eldridge Street after making his right turn, both he and Gonsalves got out of their car after Peralta's car stopped because they felt " something" might have happened. (Id. at 57-59, 70). Consistent with this rendition of events, Quintero testified that the police were called to the scene even though there was no damage to either vehicle. (Id. at 55, 65).

Gonsalves did not testily at trial, but his deposition transcript was received into evidence. Gonsalves agreed with Quintero that there was no accident. (G. 29) Gonsalves further stated that he first saw Peralta's vehicle when Quintero " began to go through the intersection." (Id. at 21). He also maintained, contrary to the testimony of every other witness, that there were four people in Peralta's Accord. (Id. at 27-28).

Simply put, the defense version of events makes no sense. First, if Quintero had successfully been making a right turn as Peralta swerved around him, there would have been no reason for Quintero to stop or for him and his passenger to exit their car. Second, although Quintero claimed that there was no impact, Police Officer Ian Chi Kei, who responded to the scene, prepared a Police Accident Report in which he noted that " Veh. 2 [Quintero's Jetta] stated he was going straight while veh. 1 [Peralta's Accord] speeded and caused veh. 2 to hit veh. 1." (Tr. 13-17; Ex. 1 at 1). Presumably, if there was no physical evidence that a motor vehicle accident had occurred, or if Quintero or Gonsalves had so stated, the officer preparing the report would have made note of what might prove to be a fraudulent insurance claim. Third, although Quintero testified that he was making a right turn just before the non-accident, the police report indicates that " veh[icle] 2" -- presumably either Quintero or Gonsalves -- stated that their vehicle was " going straight" when the accident occurred. (Ex. 1 at 1). Consistent with that description, the police diagram of the incident reflects a " t-bone" collision in which Quintero struck the middle of the passenger side of Peralta's car. (Id.). Fourth, the officer personally observed damage to the passenger side of Peralta' Accord and the front of Quintero's Jetta. (Tr. 17-18). Finally, Sanchez requested medical attention and was taken from the scene by ambulance. (Id. at 40). If the police thought the accident or Sanchez's medical complaints were feigned, the accident report presumably would have contained a notation to that effect. Instead, the report identifies Sanchez as a person " injured" in the accident. (Ex. 1 at 2).

B. Conclusions of Law

As Magistrate Judge Poliak has explained, " [u]nder New York law, the plaintiff must establish three elements in order to prevail on a negligence claim: (1) that defendant owed plaintiff a duty of care; (2) that defendant breached that duty; and (3) that the breach was the proximate cause of plaintiffs' injuries." Hodder v. United States, 328 F.Supp.2d 335, 341 (E.D.N.Y. 2004). Further, " it is the duty of both drivers to operate their automobiles with reasonable care, taking into account the actual and potential dangers existing from weather, road, traffic and other conditions." Id. (citations omitted). When a driver nears an intersection controlled by a stop sign, he must come to a stop, and " after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." N.Y.S. Vehicle and Traffic Law § 1142(a).[3]

Here, because Quintero failed to yield the right of way to Peralta, and because there is no indication that Peralta was speeding, Quintero plainly was negligent. Indeed, his failure to obey the Vehicle and Traffic Law constitutes negligence per se. Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315, 318 (2d Dep't 2010).

II. Damages

A. Findings of Fact

Unlike Sanchez, Peralta did not request medical attention at the scene. A day or two later, however, he sought medical attention for worsening lower back, neck, and shoulder pain, (Tr. 121-22). He first went to Davidson Medical, P.C., where he was provided conservative treatment including chiropractic services, electrostimulation, and massage. (Id. at 122-26, 170). On March 31, 2010, he underwent a CAT scan at Socrates Medical Health. (Id. at 333). On April 22, 2010, he also had an MRI of his lumbar spine. (Id. at 84, 246). He stopped going to Davidson Medical after about four months because the treatment " wasn't working." (Id. at 127-28).

During this same approximate time period, Peralta engaged in certain work activities. Among other things, he baby sat, drove a livery car, performed odd jobs, delivered groceries, and, despite his pain, worked as a waiter. (Id. at 133-34, 174-78, 184-85, 190-92).

In April 2011, Peralta visited Dr. Philip Rafiy, an orthopedic surgeon whose name he found on the internet. (Id. at 128). Upon physical examination, Peralta displayed restricted lateral bending to the right and left and restricted flexion and extension, and he tested positive on various subjective tests. (Id. at 233-37). Peralta's left SI reflex response also was diminished. (Id. at 238). Like Davidson Medical, Dr. Rafiy began his treatment of Peralta with conservative measures, including steroidal injections. (Id. at 128-29, 262-68). Peralta also attended the University Heights Medical Center for other conservative treatment modalities recommended by Dr. Rafiy. (Id. at 129-30, 262). Although Peralta described his pain to Dr. Rafiy as " severe, " after his initial examination, Dr. Rafiy characterized Peralta's pain level as only " moderate." (Id. at 233-34). Eventually, after reviewing various radiological images, Dr. Rafiy concluded that Peralta's pain was caused by foraminal stenosis at the L4-L5 level.[4] (Id. at 250, 253). Dr. Rafiy agreed with the defense experts that Peralta had no degenerative changes in his lumbar spine or vertebral bodies that were protruding into the spinal canal. (Id. at 242, 244, 251-52). He nevertheless concluded from radiological studies taken on April 22, 2010, approximately six weeks after the accident, that disc material extending into the neural foramen was causing stenosis at the L4-L5 level on Peralta's left side. According to Dr. Rafiy, this injury was caused by the accident in 2010 and was the competent producing cause of Peralta's pain. (Id. at 249-50, 252-53). Dr. Rafiy eventually recommended surgery after other treatment modalities failed to alleviate Peralta's pain, (Id. at 131, 253-54).

On July 22, 2011, Dr. Rafiy performed a laminotomy and foraminotomy, removing bone at the L4-L5 level and widening the vertebral foramen. (Id. at 269-70). Dr. Rafiy stabilized the right side of Peralta's spine using a pin and rod and also performed bone grafts on both sides of Peralta's spine to stabilize Peralta's back.[5] (Id. at 270-71). Dr. Rafiy testified that the surgery was necessitated by injuries that Peralta had sustained during the 2010 accident. (Id. at 272-73).

Although the surgery helped alleviate Peralta's pain, he became addicted to the Oxycontin tablets that Dr. Rafiy prescribed to help manage residual pain. (Id. at 132, 196, 281). Also, despite the surgery, Peralta had reduced lumbar flexion and extension. (Id. at 277-78). Dr. Rafiy characterized this as a " permanent partial loss" of use of the lower lumbar segment of Peralta's spine caused by the accident. (Id. at 278-79). Dr. Rafiy further found that the accident caused Peralta to have a permanent partial restriction in his ability to lift, pull, carry, stoop, crawl, and crouch. (See id. at 280). I adopt both of these findings.

In an effort to show that the surgery was unnecessary, the defendants proffered two experts. Dr. David Fisher, a radiologist, testified that imaging studies showed normally-aligned vertebral bodies and no protrusions of the lumbar spine or traumatic injury that would have justified the surgery. (Id. at 83-86; Exs. L 1-3). Dr. Fisher, however, did not address any changes in the neural foramen on Peralta's left side at the L4-L5 ...

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