Aviles v. Blatt

1

2020 NY Slip Op 35300(U)

JOHN AVILES and BYRON SAMUEL, Plaintiffs, v. ANN MARIE BLATT, WILLIAM BLATT, and SEAN LEVI, Defendants.

Index No. 609320-15, Mot. Seq. # 006 - Mot D # 007 - MD

Supreme Court, Suffolk County

July 15, 2020

Unpublished Opinion

MOTION DATES 10-21-19 (006), 10-22-19 (007)

ADJ. DATE 6-6-20

JOHN J. GUADAGNO, P.C.

Attorney for Plaintiffs

JAMES F. BUTLER & ASSOCIATES

Attorney For Defendants

Ann Marie Blatt and William Blatt

LAW OFFICES OF JENNIFER S. ADAMS

Attorney for Defendant

LINDA J. KEVINS, JUSTICE

Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant Levi, filed September 13, 2Q19. by the Blatt defendants, filed September 16. 2019; Notice of Motion/ Order to Show Cause and supporting papers __; Answering Affidavits and supporting papers by the Blatt defendants. October 11. 2019; by plaintiffs, filed March 17. 2020; Replying Affidavits and supporting papers by defendant Levi, filed October 18. 2019: by defendant Levi, filed May 4. 2020; by the Blatt defendants, filed May 4. 2020; Other; it is.

ORDERED that the motion by defendant Sean Levi and the motion by Ann Marie Blatt and William Blatt are consolidated for purposes of this determination; and it is further

ORDERED that the motion by defendant Sean Levi for summary judgment dismissing the complaint against him is granted in part and denied in part; and it is further ORDERED that the motion by Ann Marie Blatt and William Blatt for summary judgment dismissing the complaint against them is denied.

This is an action to recover damages for injuries allegedly sustained by plaintiffs John Aviles and Byron Samuel as a result of a motor vehicle accident, which occurred on September 30, 2012 on Old Nichols Road, at or near its intersection with Veterans Highway, in the Town of Islip, New York. The accident allegedly occurred when a vehicle owned by defendant William Blatt and operated by defendant Ann Marie Blatt struck the rear of defendant Sean Levi's vehicle. Plaintiffs were riding in Mr. Levi's vehicle at the time of the accident. Mr. Aviles alleges, in relevant part, that he suffered various injuries as a result of the motor vehicle accident, including a disc herniation at L3-4, disc bulges at L4-5, L5-S1, C2-3, C3-4, C4-5, and C5-6, sprains to the cervical, thoracic, and lumbar regions of his spine, and right shoulder tendinosis. Mr. Samuel alleges, in relevant part, that he suffered various injuries as a result of the motor vehicle accident, including a disc bulge at C2-3, disc herniations at C3-4, C4-5, and C5-6, sprains to the cervical and lumber regions of his spine, and right shoulder tendinosis.

Mr. Levi now seeks an order granting summary judgment dismissing the complaint against him on the grounds that he was not negligent in the operation of his vehicle and that plaintiffs did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). Mr. Levi submits, in support of the motion, copies of the pleadings, the bill of particulars, an uncertified police report, the transcript of the deposition testimony of Mr. Aviles, Mr. Samuel, Mr. Levi, and Ms. Blatt, and the affirmed medical reports of orthopedic surgeon Gary Kelman, M.D., and radiologist Melissa Sapan Cohn, M.D. In opposition, the Blatt defendants argue that triable issues of fact remain as to whether Mr. Levi was comparatively negligent in the operation of his vehicle. Also in opposition, plaintiffs argue that issues of fact remain as to whether they sustained serious injuries. Plaintiffs submit, among other things, the affirmed medical reports of radiologist Steven Winter, M.D., and orthopedic surgeon Anthony Finuoli, M.D., and the medical records of LI Spine Medicine.

The Blatt defendants seek an order granting summary judgment dismissing the claims asserted by Mr. Samuel on the ground that he did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d). They submit, in support of the motion, copies of the pleadings, the bill of particulars, the transcript of Mr. Samuel's deposition testimony, various medical records, the unaffirmed reports of radiologist Robert Diamond, M.D., and the affirmed medical report of orthopedic surgeon Gary Kelman, M.D.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" (Kante v Tong Fei Chen, 176 A.D.3d 928, 929, 111 N.Y.S.3d 612 [2d Dept 2019]; see Martinez v Allen, 163 A.D.3d 951, 82 N.Y.S.3d 130 [2d Dept 2018]; Searless v Karczewski, 153 A.D.3d 957, 60 N.Y.S.3d 431 [2d Dept 2017]; Bernstein v New York City Jr. Auth., 153 A.D.3d 897, 61 N.Y.S.3d 113 [2d Dept 2017]). There can be more than one proximate cause of an accident, and it is generally for the trier of fact to determine the issue of proximate cause (Searless v Karczewski, supra). The presumption of negligence in rear-end cases arises from the duty of the driver of the following vehicle to keep a safe distance and not collide with the traffic ahead (see Vehicle and Traffic Law § 1129 [a]: Witonsky v New York City Tr. Auth., 145 A.D.3d 938, 43 N.Y.S.3d 505 [2d Dept 2016]; Service v McCoy, 131 A.D.3d 1038, 16 N.Y.S.2d 283 [2d Dept 2015]). A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on that driver to proffer a non-negligent explanation for the collision (Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2019]; Mihalatos v Barnett, 175 A.D.3d 492, 106 N.Y.S.3d 165 [2d Dept 2019]; Conroy v New York City Tr.Auth., 167 A.D.3d 977, 91 N.Y.S.3d 183 [2d Dept 2018]; Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]). If the driver of the offending vehicle cannot come forward with evidence to rebut the inference of negligence, the driver of the stopped or stopping vehicle is entitled to summary judgment on the issue of liability (Tsyganash v Auto Mall Fleet Mgt., Inc., supra; Cortes v Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept 2011]).

Mr. Levi failed to establish a prima facie case of entitlement to summary judgment as to liability, as he failed to demonstrated that he did not contribute to the happening of the accident by suddenly stopping and attempting to move from the turning lane into the through lane (see Moran v Singh, 10 A.D.3d 707, 782 N.Y.S.2d 284 [2d Dept 2004]; see also Richter v Delutri, 166 A.D.3d 695, 87 N.Y.S.3d 185 [2d Dept 2018]; Romero v Brathwaite, 154 A.D.3d 894, 62 N.Y.S.3d 170 [2d Dept 2017]; cf. Perez v Persad, 183 A.D.3d 771, 123 N.Y.S.3d 683 [2d Dept 2020]). Mr. Levi testified that he approached a red traffic light in the left turn lane on Old Nichols Road with his left turn signal engaged. He stated that he traveled one or two car lengths and stopped for two or three seconds. Mr. Levi stated that he realized he needed to travel straight and "waved down" the driver to his right. The driver gestured that Mr. Levi could move ahead in front of his vehicle, so Mr. Levi engaged his right turn signal and then began to move forward by taking his foot off the brake. The rear of Mr. Levi's vehicle w^:as then struck by Ms. Blatts vehicle. Mr. Levi testified that the contact occurred while his front right tire was in the through lane of travel while the rest of his car was still in the left turn lane. Ms. Blatt testified that she came to a complete stop at a red traffic light behind approximately five cars. She stated that Mr. Levi's vehicle had its left turn signal engaged and then engaged its right turn signal, as it was trying to go right from the left turn lane. Ms. Blatt stated that Mr. Levi's vehicle stopped suddenly and abruptly, and that her vehicle struck the rear of his vehicle. Having determined Mr. Levi failed to meet his prima facie burden as to his negligence, it is unnecessary to consider whether the papers in opposition are sufficient to raise a triable issue of fact (Winegrad v New York Univ. Med. Ctr., supra).

Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

A defendant seeking summary judgment on the ground that a...