Opinion
1880/03.
Decided April 28, 2006.
Mallilo Grossman, Flushing, New York, for Plaintiff.
Norman Volk Associates, P.C., New York, NY, for Defendant.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion by defendants for summary judgment dismissing the complaint on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law 5102(d).
PAPERS NUMBERED
Notice of Motion-Affidavits-Exhibits. (11/15/04) 1-5 Answering Affidavits-Exhibits. (Plaintiff's Motion to Vacate 1/24/06) 6-12
This is the third motion on the issue of plaintiff's claim of serious injury before the third Judge of Civil Court, Queens County.
Upon the foregoing cited papers, and after conference, it is ordered that defendants' motion for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the ground that plaintiff did not suffer a "serious injury" as defined in Insurance Law § 5102(d) as a result of a motor vehicle accident which occurred on February 26, 1996, is granted.
On November 15, 2004, the first judge hearing the issue granted the motion for summary judgment by decision and order which held, after a discussion of the evidence submitted in support of the motion, that the evidence was sufficient to establish prima facie entitlement to judgment as a matter of law. The motion was granted upon plaintiff's default.
On January 24, 2006, plaintiff moved for an order vacating its default in appearing on the motion for summary judgment, and upon vacatur, for a denial of the motion based on plaintiff's medical evidence. Annexed to plaintiff's motion was defendants' complete summary judgment motion, an affidavit of merit from plaintiff and medical evidence in admissible form of plaintiff's injuries.
It is axiomatic that in order to vacate a default, a plaintiff must demonstrate both a reasonable excuse for the default and a meritorious cause of action. (CPLR 5015 [a]; Beale v. Yepes, 309 AD2d 886 [2nd Dept 2003].) When a defendant's motion for summary judgment has been granted pursuant to Insurance Law § 5102(d), plaintiff's motion to vacate must contain opposition to the underlying motion sufficient to raise a triable issue of fact satisfying the serious injury threshold. ( id; Itskovich v. Lichenstadter 2 AD3d 406 [2nd Dept 2003]; Sarot v. Yusufov, 301 AD2d 512 [2nd Dept 2003].) Without such a showing, the motion to vacate will be denied. ( Waaland v. Weiss, 228 AD2d 435 [2nd Dept 1996].) Thus, where a prior judge has decided that a moving defendant has demonstrated that a plaintiff did not suffer a "serious injury" as defined in Insurance Law § 5102(d), on a motion to vacate, that judge's determination stands and the only issue is for the subsequent judge deciding vacatur, other than the reasonableness of the excuse, is whether the defaulting plaintiff raises an issue of fact.
Here, rather than submitting the motion to vacate for a determination, on the return date, the parties entered into a stipulation which was "so ordered" by a second judge hearing the issue. The stipulation provided, in pertinent part:
The parties hereby stipulate and agree that the summary judgment motion . . . granted on default is hereby vacated. Parties agree that the [defendants'] summary judgment motion be decided on the merits. Motion shall be re-calendared to 3/7/06 FINAL. Movant to retrieve original motion papers. . . . [Emphasis added].
It is well settled that "[p]arties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. ( In re Petition of New York, L W R Co, 98 NY 447, 453.) As such, through the use of stipulations, parties to a civil dispute are free to chart their own litigation course. ( Mitchell v. New York Hospital, 61 NY2d 208.) Here, by "so ordering" the stipulation vacating the default, a determination has, in effect, been made regarding the reasonableness of plaintiff's excuse for defaulting and a determination has been made that the entire motion, which includes the moving papers, is to be "[re]-decided on the merits" by a third Civil Court judge.
It is worth noting that while CPLR 5015(c) permits the clerk to vacate a judgment if the parties stipulate to vacatur, the provision is limited to vacating a default judgment entered pursuant to CPLR 3215.
The parties' stipulation thus directs that a subsequent judge review the determination made by the first judge which is in direct contravention of the principle of comity and the doctrine against collateral vacatur. While generally judicial comity refers to the interplay between Courts of differing jurisdictions, the principle itself is applicable in this instance:
Comity is not a rule of law, but one of practice, convenience and expediency. It is something more than mere courtesy, and implies only deference to the opinions of others, since it is of substantial value in securing uniformity of decision and discouraging repeated litigation of the same question.
( National Park Bank v. Old Colony Trust Co, 114 Misc 127 [Sup Ct NY County 1921].)
The longstanding rule against collateral vacatur holds that one Judge should not reconsider, disturb or overrule an order in the same action of another Judge of co-ordinate jurisdiction in the same case ( People v. Jennings, 69 NY2d 103; Dondi v. Jones, 40 NY2d 8; Kamp v. Kamp, 59 NY 212, 217 ["it is not fit that one judge should sit in review of the decisions and judgments of another judge"]; Nong Yaw Trakansook v. 39 Wood Realty Corp, 18 AD3d 633 [2nd Dept 2005]; L.K. Comstock Co v. Duffy, 43 AD2d 704 [2nd Dept 1973]; Willard v. Willard, 194 App Div 123 [2nd Dept 1920].) Collateral vacatur is tantamount to an appeal from one judge to a subsequent judge for a review of the first order, wherein the subsequent judge arrogates to himself or herself the power of appellate review. ( Platt v. New York SBR Co, 170 NY 451 Lovett v. Allstate Ins Co, 86 AD2d 545 [1st Dept 1982] aff'd 64 NY2d 1124; George W Collins, Inc v. Olsker-McLain Inds, 22 AD2d 485 [4th Dept 1965].) Thus, collateral vacatur is a breach of comity which can only lead to unseemly conflicts of decision and to protracted litigation. ( George W. Collins, Inc v. Olsker-McLain Industries, Inc, 22 AD2d 485, supra.)
It is noted that issues involving collateral vacatur would not likely be found in Supreme Court in light of the individual assignment system. (Uniform Rules for Trial Courts (22 NYCRR) § 202.3[a] and 208.3[a]; Dalrymple v. Martin Luther King Community Health Center, 127 AD2d 69 [2nd Dept 1987].)
An exception to the rule against collateral vacatur is contained in CPLR 2221[a][1] which provides that a motion affecting a prior order that is issued on default of one of the parties "may be made, on notice, to any judge of the court." (CPLR 2221[a][1].) This exception, however, is limited to an order wherein the first judge "had no occasion to pass on the merits of the motion and is therefore not being 'reviewed' by [a] colleague." (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:4, at 181.) The reasoning behind this exception is that such default orders do not involve a determination by the first judge, and as such, there is no conflict with the policy against judges of coordinate authority reviewing each other's decisions. (1 New York Civil Practice: CPLR § 2221.02.) Generally, interim orders issued on default and which do not involve a determination, fall within this exception. ( First Fed. Sav Loan Ass'n v. O'Daly, 201 AD2d 532 [2nd Dept 1994] [order to provide statement of account]; Juers v. Barry, 114 AD2d 1009 [2nd Dept 1985] [preclusion order]; Patron v. Mutual of Omaha Ins Co, 129 AD2d 572 [2nd Dept 1987] [order striking action from inquest calendar].)
In contrast, on a serious injury threshold summary judgment motion, a determination is required whether or not the motion is submitted on default. According to the seminal case of Licari v. Elliott, 57 NY2d 230, summary judgment motions made pursuant to Insurance Law § 5102, require that the court must make the determination "whether or not a prima facie case of serious injury has been established," and subsequent cases set forth specific criteria that must be considered in making that determination. ( Id. at 237; Pommels v. Perez, 4 NY3d 566; Toure v. Avis Rent A Car Sys, 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955.) Thus, in reviewing a motion on the issue of serious injury, the Court has the occasion "to pass on the merits of the motion" and a subsequent motion to vacate a default in appearing on said motion does not fall within the exception of CPLR 2221[a][1]. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:4, supra.)
The papers now submitted on this "motion" consist of (1) defendants' motion for summary judgment originally returnable on November 15, 2004, resulting in a decision and order dated December 10, 2004, and (2) plaintiff's opposition, which is, in fact, plaintiff's motion to vacate its default, originally returnable on January 24, 2006, resulting in the "so ordered" stipulation of the same date.
Inasmuch as Judge One did not "so order" the stipulation vacating the default and directing that her determination be reconsidered, the motion is not referable to that Part and inasmuch as Judge Two did not make the initial determination on the issue of serious injury, the motion is not referable to that Part either.
Based upon principles of comity, the doctrine against collateral vacatur, and a desire to limit re-litigation of issues, and, notwithstanding the language of the stipulation, this Court will not reconsider the moving papers and defers to the first judge's determination that defendants demonstrated a prima facie showing that plaintiff has not suffered, as a result of a motor vehicle accident, a serious injury. ( See Insurance Law § 5102(d); Oberly v. Bangs Ambulance Inc., 96 NY2d 295; Gaddy v. Eyler, 79 NY2d 955, supra.)
In light of the above, the burden shifts to plaintiff to demonstrate the existence of a triable issue of fact by submitting competent medical proof that plaintiff has suffered, as a result of a motor vehicle accident, a serious injury. ( See Gaddy v. Eyler, 79 NY2d 955 supra; Licari v. Elliott, 57 NY2d 230, supra.)
In opposition to the motion, plaintiff fails to submit competent medical evidence sufficient to raise a triable issue of fact inasmuch as plaintiff fails to address the nearly five year gap in treatment and inasmuch as there is no proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in his spine. ( Pommells v. Perez 4 NY3d 566; Li v. Woo Sung Yun, 2006 NY Slip Op 2170 [2nd Dept].) Further, any finding that the plaintiff's current injuries are causally related to the subject accident is speculative as plaintiff's medical expert fails to indicate an awareness that plaintiff was involved in a prior motor vehicle accident. ( Bennett v. Genas, 2006 NY Slip Op 2149 [2nd Dept]; Allyn v. Hanley, 2 AD3d 470 [2nd Dept 2003].) Finally, the affirmed report of plaintiff's own radiologist indicates that changes in plaintiff's cervical and lumbar spine are related to degenerative disc disease. ( Pommells v. Perez, 4 NY3d 566, supra.)
Accordingly, as plaintiff has failed to rebut the defendants' prima facie showing by submitting admissible evidence sufficient to raise a triable issue of fact, the motion for summary judgment is granted and the complaint is dismissed.
The Clerk shall enter judgment pursuant to this order.
This constitutes the decision and order of the court.