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Fillette v. Lundberg

Supreme Court of New York, Third Department

May 25, 2017

JOHN FILLETTE JR., Appellant,
v.
PETER T. LUNDBERG, Respondent.

          Calendar Date: February 24, 2017

          John T. Casey Jr., Troy, for appellant.

          Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Jessica A. Rounds of counsel), for respondent.

          Before: Garry, J.P., Lynch, Clark, Mulvey and Aarons, JJ.

          MEMORANDUM AND ORDER

          Clark, J.

         Appeal from an order of the Supreme Court (Cahill, J.), entered March 7, 2016 in Ulster County, which, among other things, granted defendant's cross motion for summary judgment dismissing the complaint.

         On June 7, 2014, plaintiff was driving northbound when defendant's vehicle, which was traveling in the opposite direction, crossed the double yellow line and struck the front, left side of plaintiff's vehicle. Plaintiff subsequently commenced this action alleging that he sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of defendant's negligence. Soon after, defendant joined issue, and, upon his demand, plaintiff filed a bill of particulars in which he claimed to have sustained a serious injury under the significant limitation of use of a body function or system and the 90/180-day categories [1]. Following discovery, plaintiff moved for summary judgment on the issue of liability, and defendant cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiff's motion, granted defendant's cross motion and dismissed the complaint. Plaintiff appeals.

         Initially, we agree with plaintiff that Supreme Court erred in denying his motion for summary judgment on the issue of liability. Where, as here, a driver of a motor vehicle crosses a double yellow line into an oncoming lane of traffic in violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law §§ 1120, 1126 [a]) and strikes another motor vehicle, a prima facie case of negligence is established (see Rodriguez v Gutierrez, 138 A.D.3d 964, 967 [2016]; Snemyr v Morales-Aparicio, 47 A.D.3d 702, 703 [2008]; Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38 A.D.3d 1071, 1072 [2007]). Here, plaintiff's deposition testimony that defendant's southbound vehicle crossed the double yellow line and entered his northbound lane of travel, coupled with defendant's deposition testimony that he pleaded guilty to a traffic ticket for crossing a double yellow line, established defendant's per se negligence. While violations giving rise to negligence per se may be excused if they are the result of "an unforeseen and unexpected medical emergency" (Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38 A.D.3d at 1072) or other "'emergency situation not of the driver's own making'" (Snemyr v Morales-Aparicio, 47 A.D.3d at 703, quoting Foster v Sanchez, 17 A.D.3d 312, 313 [2005]; see Rodriguez v Gutierrez, 138 A.D.3d at 967), defendant's testimony, unsupported by any corroborating medical evidence, that he did not recall how the accident had occurred because he "[b]lacked out probably" or "blocked it out" was insufficient to create an issue of fact as to whether the accident was caused by an unforeseen emergency, medical or otherwise (see Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38 A.D.3d at 1072; Chiaia v Bostic, 279 A.D.2d 495, 496 [2001]). Moreover, defendant testified that, although one of his prescription medications had the potential to cause drowsiness, he did not believe that the prescription made him drowsy because he had become accustomed to the drug after a few weeks. Accordingly, as defendant failed to rebut plaintiff's prima facie showing that defendant's negligence proximately caused the accident, Supreme Court should have granted plaintiff's motion for summary judgment on the issue of liability (see Chiaia v Bostic, 279 A.D.2d at 496).

         Turning to defendant's cross motion for summary judgment dismissing the complaint, "[u]nder New York's No-Fault Law, an injured party's right to bring a personal injury action for noneconomic losses... arising out of an automobile accident is limited to those instances where such individual has incurred a serious injury" (Jones v Marshall, 147 A.D.3d 1279, 1283 [2017] [internal citation omitted]; see Insurance Law § 5104 [a]; Cross v Labombard, 127 A.D.3d 1355, 1355 [2015]). As relevant here, Insurance Law § 5102 (d) defines a serious injury as a "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 [90] days during the [180] days immediately following the occurrence of the injury or impairment." As the proponent of a motion for summary judgment dismissing the complaint, the defendant bears the burden of establishing, by competent medical evidence, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Baez v Rahamatali, 6 N.Y.3d 868, 869 [2006]; DeHaas v Kathan, 100 A.D.3d 1057, 1058 [2012]). If the defendant satisfies this initial burden, the plaintiff must then "come forward with objective medical evidence sufficient to create a question of fact regarding the existence of a serious injury caused by the accident" (Cross v Labombard, 127 A.D.3d at 1356; see Baez v Rahamatali, 6 N.Y.3d at 869).

         When a plaintiff relies on the significant limitation of use of a body function or system category, such claim must be based upon "'objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body... function or system'" (Martin v LaValley, 144 A.D.3d 1474, 1477 [2016], quoting John v Engel, 2 A.D.3d 1027, 1029 [2003]; see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [1995]). Here, in support of his cross motion for summary judgment dismissing the complaint, defendant proffered the affirmed independent medical evaluation report of Richard Moscowitz, an orthopedist, who stated that plaintiff had a "full range of motion of both shoulders, " that plaintiff's diagnosis of an acute cervical sprain had resolved and that plaintiff had reached maximum medical improvement. Defendant also submitted the unsworn report of Gabriel Aguilar, [2] a neurologist and one of plaintiff's treating physicians, who asserted that plaintiff's cervical sprain appeared to be resolved and that plaintiff had no restriction of movement or spasms in his neck or back. Together, these reports satisfied defendant's initial burden of establishing that plaintiff's alleged neck, back and left shoulder injuries did not qualify as a serious injury under the significant limitation of use category (see Flottemesch v Contreras, 100 A.D.3d 1227, 1228 [2012]; Womack v Wilhelm, 96 A.D.3d 1308, 1309-1310 [2012]). [3]

         In opposition, plaintiff produced the affirmation of Luis Mendoza, one of plaintiff's treating physicians. In his affirmation, Mendoza stated that, following his examination, he determined that plaintiff suffered from, among other things, lumbar radiculopathy, cervical thoracic lumbar sprain/strain, traumatic bursitis of the left shoulder, left shoulder sprain/strain and cervical thoracic lumbar muscle spasms as a direct result of the June 2014 motor vehicle accident. He asserted that he conducted several clinical objective tests on plaintiff - prior to his involvement in a second automobile accident on September 29, 2014 - to determine his range of motion in his neck and lumbar and thoracic lumbar spine. Based on the results of these tests, which he quantified in his affirmation, Mendoza concluded that plaintiff suffered from a "significant loss of range of motion." Mendoza also stated that he observed muscle spasms in plaintiff's spine and that plaintiff tested positive for several other clinical objective range of motion tests to his left shoulder. This evidence, viewed in the light most favorable to plaintiff (see Cross v Labombard, 127 A.D.3d at 1356; Hyatt v Maguire, 106 A.D.3d 1180, 1181 [2013]), raised a triable issue of fact as to whether plaintiff's alleged neck, back and left shoulder injuries constitute a serious injury under the significant limitation of use category (see Hildenbrand v Chin, 52 A.D.3d 1164, 1165-1166 [2008]; McGuirk v Vedder, 271 A.D.2d 731, 732 [2000]), so as to defeat defendant's cross motion for summary judgment dismissing the complaint.

         As for plaintiff's alleged psychological injuries, "[i]t has been established 'that a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" (Brandt-Miller v McArdle, 21 A.D.3d 1152, 1153 [2005], quoting Bissonette v Compo, 307 A.D.2d 673, 674 [2003]; see Krivit v Pitula, 79 A.D.3d 1432, 1432 [2010]). Here, defendant satisfied his initial burden of producing competent medical evidence establishing that plaintiff's alleged psychological injuries did not qualify as a serious injury under the significant limitation of use category by proffering the psychological evaluation of David Masur, a neuropsychologist. Specifically, Masur concluded, based upon his evaluation, that there was no indication that plaintiff suffered from "significant depression, traumatic stress, difficulty with interpersonal relationships, or behavior dyscontrol." He further stated that any anxiety experienced by plaintiff could not be causally related to the June 2014 motor vehicle accident and that, overall, plaintiff's "prognosis for performance at his optimal level of psychological functioning [was] excellent."

         The burden thus shifted to plaintiff to raise a triable issue of fact as to whether his alleged psychological injuries could satisfy the serious injury threshold (see Brandt-Miller v McArdle, 21 A.D.3d at 1154). To that end, plaintiff proffered the affirmed narrative report of Barry Goldman, his primary care physician. Goldman stated that plaintiff visited his primary care practice more than a dozen times between August 2014 and November 2015 - three of which predated the second motor vehicle accident in September 2014 - for treatment relating to anxiety, stress, insomnia, nightmares, irritability, temperament changes and reliving and experiencing flashbacks of the June 2014 accident. Based on his review of the medical records generated from these visits, as well as his own examinations of plaintiff, Goldman concluded that plaintiff's diagnosis of posttraumatic stress disorder was causally related to the June 2014 motor vehicle accident. He stated that, although the death of plaintiff's wife and the second motor vehicle accident "may have added to his symptoms, the trauma of his first accident was the cause and directly related to his complaints." This evidence was sufficient to raise a question of fact as to whether the June 2014 motor vehicle accident caused plaintiff to suffer psychological injuries constituting a significant limitation of use of a body function or system (see Krivit v Pitula, 79 A.D.3d at 1432; Chapman v Capoccia, 283 A.D.2d 798, 800-801 [2001]; compare Clark v Basco, 83 A.D.3d 1136, 1139 [2011]).

         Finally, with respect to plaintiff's claim under the 90/180-day category, defendant failed to meet his initial burden of showing that plaintiff did not sustain a serious injury under this category. Indeed, defendant failed to come forward with any objective medical evidence regarding plaintiff's ability to perform his usual and customary daily activities during the 180 days following the June 2014 accident (see Ames v Paquin, 40 A.D.3d 1379, 1380 [2007]; Lowell v Peters, 3 A.D.3d 778, 780 [2004]). In any event, even if the burden shifted to plaintiff, we would find that the affirmation of Mendoza, who diagnosed plaintiff as "temporarily totally disabled" as of September 17, 2014, coupled with plaintiff's deposition testimony and the restriction of activities placed upon ...


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