United States District Court, N.D. New York
DUPEE & MONROE, P.C. JON C. DUPEE, Jr., ESQ., Goshen, NY, Counsel for Plaintiff.
GOLDBERG SEGALLA LLP, LATHA RAGHAVAN, ESQ. Albany, NY, Counsel for Defendants.
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this personal injury action filed by Damaris Lopez ("Plaintiff") is a motion for summary judgment by defendants, Bourdeau Bros., Inc. and Ricky D. Mathely (collectively, "Defendants"). (Dkt. No. 24.) For the reasons set forth below, Defendants' motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
Generally, liberally construed, Plaintiff's Complaint alleges that, on September 14, 2009, at approximately 5:25 p.m. in the Town of Phelps, New York, Ricky D. Mathely ("Mathely") carelessly, negligently and recklessly operated a tractor trailer, with the implied consent of its owner, Bourdeau Bros., Inc. ("Bourdeau"), and as a result, came into physical contact with the motor vehicle operated by Plaintiff, causing Plaintiff to sustain serious and permanent bodily injuries, as defined by N.Y. INS. LAW § 5102. (Dkt. No. 1.) Plaintiff's Complaint further alleges that, Mathely, who was employed by Bourdeau, was operating the motor vehicle during the course of his employment.
More specifically, Plaintiff's Complaint alleges that Mathely failed to, among other things, keep his vehicle under control, operate his vehicle at a safe speed, properly operate the horn, lights, steering and braking devices, and avoid the occurrence of a collision, causing the injury to Plaintiff. Further, the Complaint alleges that Mathely changed lanes without signaling, drifted from lane to lane, and failed to take those precautions reasonable and necessary to avoid the occurrence of the referenced accident.
B. Parties' Briefing on Defendants' Motion for Summary Judgment
Generally, in support of their motion for summary judgment, Defendants argue that they are not liable to Plaintiff for negligence as a matter of law because (1) there is no evidence that Defendants were involved in the accident in question; and (2) there is no evidence that Plaintiff has a serious injury under New York State Insurance Law Section 5102(d) as a result of the accident in question. ( See generally Dkt. No. 24-19 [Defs.' Mem. of Law].)
Generally, in response to Defendants' motion for summary judgment, Plaintiff argues that, (1) based on the current record, a genuine dispute exists as to whether Defendants were involved in the accident in question, for the following four reasons: (a) Plaintiff testified that she was present at the New York State Thruway rest stop where Mathely and his tractor-trailer were stopped and she identified the tractor-trailer as the vehicle that was involved in the accident with her vehicle earlier that day; (b) Trooper Manibanseng testified that Trooper Harling confirmed that he inspected both Plaintiff's vehicle and the tractor-trailer operated by Mathely and that he noted paint transfer from Plaintiff's vehicle to the tractor-trailer; (c) immediately after receiving a call from Plaintiff informing him of the accident, Hector Rodriguez reported the license plate number of the truck he was following to the Thruway Authority as AV19386, which came back registered to Bourdeau; and (d) Trooper Harling called in the tractor trailer, bearing license plate number 60581PA, from the Thruway rest area, and it was again found to be registered to Bourdeau; (2) Defendants have failed to meet their burden of proof that Plaintiff has not sustained a serious injury; (3) a question of fact exists as to whether Plaintiff sustained a significant limitation in her usual and customary daily activities for 90 of the 180 days following the injury based on the affidavits of Plaintiff and Dr. Crawford Campbell, M.D.; and (4) a question of fact exists as to whether or not Plaintiff suffered a significant disfigurement as a result of the motor vehicle accident as evidenced by the photographs annexed to the affidavit of Dr. Campbell. ( See generally Dkt. No. 29-6 [Pl.'s Opp'n Mem. of Law].)
Generally, in their reply, Defendants argue that (1) there is no admissible evidence that the tractor-trailer owned by Bourdeau and operated by Mathely was involved in an accident with Plaintiff; (2) Plaintiff has failed to demonstrate with objective medical evidence that there is any issue of fact with regard to the serious injury threshold for the following five reasons: (a) Defendants' doctor is not required to objectively measure range of motion under the circumstances of this case, (b) Plaintiff's response to Defendants' summary judgment motion fails to address the categories of permanent loss of use, permanent consequential limitation of use and significant limitation of a body function or system and therefore, those claims must be dismissed, (c) Plaintiff's self-serving affidavit that contradicts her prior sworn testimony does not raise a question of fact as to whether Plaintiff sustained a medically determined injury that prevented her from substantially all of her usual and customary activities for 90 of the first 180 days following the accident, (d) Plaintiff has not addressed significant limitation of a body function or system in responding to Defendants' motion for summary judgment, and (e) Plaintiff's allegation, made for the first time in response to the Defendants' motion for summary judgment, that she suffered a significant disfigurement as a result of the motor vehicle accident should not be considered, and, in any event, does not raise an issue of fact warranting trial. ( See generally Dkt. No. 30 [Defs.' Reply Mem. of Law].)
C. Undisputed Material Facts
Unless otherwise noted, the following material facts have been asserted and supported by Defendants in their Local Rule 7.1 Statement of Undisputed Material Facts, and either admitted or denied without a supporting record citation by Plaintiff in her Local Rule 7.1 Response. ( Compare Dkt. No. 24-18 [Defs.' Rule 7.1 Statement] with Dkt. No. 29-7 [Pl.'s Rule 7.1 Response].)
On September 14, 2009, Plaintiff was driving a Ford Explorer on I-90 West, the New York State Thruway ("the Thruway"), heading to Erie, Pennsylvania. Plaintiff's 15-year-old son was a front-seat passenger in the Ford Explorer and was sleeping. Plaintiff's boyfriend, Hector Rodriguez, was driving a U-Haul truck on the Thruway ahead of Plaintiff.
Plaintiff testified that, while traveling on the Thruway, when she attempted to pass a tractor-trailer from the left, the back end of the trailer crossed over into the left lane and collided with her vehicle. ( See Dkt. No. 24-6 at 33-36 [Dep. of Damaris Lopez, Aug. 22, 2013].) Thereafter, Plaintiff stopped her vehicle on the side of the left hand lane, called Hector with her cell phone and told him that a truck behind Hector had hit her vehicle. When Plaintiff reported the accident to Hector, she saw that he was in the right lane and the tractor-trailer that she reported hit her was also in the right lane behind Hector. Plaintiff then saw Hector move into the left lane, but the tractor-trailer that she was complaining about remained in the right lane. Sometime thereafter, Hector called Plaintiff and told her that he had called the police and was following the tractor-trailer. Plaintiff waited for a New York State Trooper, who arrived almost one hour later.
Hector did not know which lane Plaintiff was in or where she was at the time she called him. Hector testified that when Plaintiff called him, he saw a tractor-trailer in the left-hand lane. The tractor-trailer that Hector saw in the left lane was passing him when Plaintiff called. Hector followed that tractor-trailer that was in the left-hand lane.
Hector called 911 and provided the mile-marker where he was at that time. Hector testified that he repeatedly tried to block the tractor-trailer and get the driver's attention by flashing and signaling. The tractor-trailer then suddenly sped off at up to 80 miles per hour, with Hector following at 80 miles per hour, but then the tractor-trailer went faster at 90 to 100 ...