Opinion
7682/2005.
Decided on August 31, 2009.
Plaintiff Solis brings this action to recover damages for personal injuries allegedly arising from an accident which occurred on August 7, 2004, in front of a store owned by defendant Concept, (Concept). Defendants Kenneth J. Aronholz, and Trucknology Inc., (collectively referred to as Aronholz,) are the driver and owner, respectively, of a truck which allegedly struck plaintiff while he was standing next to his parked vehicle.
Plaintiff's Exhibit "A"; Defendants Aronholz's Exhibit "G"; Gelpi's Examination Before Tria, January 29, 2007, p. 6-7.
Defendant Aronholz's Exhibit "H", Examination Before Trial, January 25, 2006, p. 7-8; p. 9, LL — 6-20.
Defendant Concept moves for summary judgment dismissing plaintiff's complaint and cross claims asserted against it on the ground that it is not liable for the accident which plaintiff claims caused his injury. Defendants Aronholz also move by, separate motion, for summary judgment on the ground that plaintiff did not sustain a "serious injury" as defined by the Insurance Law § 5102(d).
FACTUAL ALLEGATIONS — Plaintiff's testimony and evidence:
According to plaintiff's version of the events which led to the accident, Solis avers that when he arrived at Concept's store, located on Zerega Avenue, he parked his Dodge minivan on the sidewalk in front of the entrance to Concept's store, "facing the front of the building", or "perpendicular to the front of the building". Plaintiff said he went to Concept's store to purchase a "blue fluorescent light frame", which he wanted installed where his rear license plate is located. An employee of the store, whom plaintiff referred to as Alberto, allegedly exited the store with plaintiff and both walked to the location where Solis parked his van, to install the item which he allegedly purchased. Then plaintiff says Concept's employee took a coffee break (with his permission).
SOLIS' vehicle is a Dodge Caravan minivan. (Examination Under Oath, of Solis, February 7, 2005, p. 8 L21-23, p. 9 L10. Plaintiff SOLIS testified at an Examination Under Oath (EUO) on February 7, 2005, and again at an "Examination Before Trial" on January 25, 2006.
SOLIS Examination Before Trial dated January 25, 2006, p. 35-36.
SOLIS' testimony at his EUO differs from his testimony at his Examination Before Trial without explanation for the discrepancies.
Solis Examination Before Trial dated January 25, 2006 p. 84 L 24-25, p. 85 L 1-5.
After Concept's employee left, plaintiff stood behind his van, (with the hatchback of his van raised), presumably to observe how Concept's employee disassembled the electrical system which controlled the rear light. Plaintiff testified that while he was facing his van he felt an impact to his back and knees but never fell to the ground. He then said he saw Aronholz, who drove Trucknology's truck, park his vehicle which plaintiff contends struck him causing a variety of injuries.
Id, p. 45 and p. 54.
Although plaintiff's deposition testimony indicates that his feet were on the sidewalk area when he was allegedly struck by Trucknology's vehicle, plaintiff's expert disputes plaintiff's version of where he was standing by stating that plaintiff could not have been standing on the sidewalk when he was struck by Trucknology's vehicle. The following synopsis is a portion of the opinion submitted by plaintiff's expert which allegedly fixes where plaintiff was standing when Trucknology's vehicle hit him:
Plaintiff's Exhibit "I".
"the rear of the minivan was in the roadway, i.e., on the asphalt roadway and not on the concrete sidewalk or driveway . . . The sidewalk area is approximately 15 feet in length. Mr. Solis' vehicle, the Dodge Caravan is approximately 16 feet in length. Therefore, part of the rear of the minivan had to overhang into the street area. . . . Mr. SOLIS, behind the minivan, had to have been standing on the street pavement when the truck struck him."
( See Nicholas Bellizzi's Affidavit, dated April 12, 2007, p. 3, 6). Plaintiff's expert goes on to attribute the cause of the accident to "the subject curb cut/ driveway and its use by Concept for parking customer vehicles and performing work on them." (Bellizzi, id., p. 7).
Defendant Concept 2000's testimony:
Concept's owner, Miguel Gelpi, testified that plaintiff Solis parked his car halfway on the sidewalk, and halfway in the street, and insists that the only item plaintiff purchased from his store was a brake light bulb which is not, as plaintiff described, a fluorescent light supposedly to illuminate the area around the license plate on plaintiff's vehicle. Gelpi denied that his store sold such an item. Gelpi said he was working at the store on the day of the accident.
Gelpi Examination Before Trial, January 29, 2007, p. 10-12, 20-25, 42-45, and 55-58.
Gelpi also avers that Concept's employees never installed lights or other accessories while customers' vehicles were parked on the sidewalk area in front of the store. Rather, installations were performed in the garage located on Concept's property where cars would enter from the driveway located on Commerce Street, in the back of Concept's store.
Gelpi Examination Before Trial, January 29, 2007, p. 10-12, 20-25, 42-45, 55-58.
Gelpi also testified that he viewed a video of the incident captured on Concept's surveillance system — which demonstrated that Solis was not hit by Trucknology's vehicle since Solis was not standing behind his van when the truck driven by Aronholz made contact with the open hatchback door of Soli's van.
The video is unavailable; it was not saved. Gelpi Examination Before Trial, January 29, 2007, p. 16-18, 10-12, 20-25, 42-45, 55-58.
Defendants Aronholz/ Ttrucknology's testimony:
Aronholz testified that he did not see his truck make contact with plaintiff; and that he did not see plaintiff standing behind his van as alleged by plaintiff. The mirror of the truck driven by Aronholz did make contact with the van's open hatchback, without apparent damage to the hatchback. Immediately after this contact, Aronholz inspected his truck to see if there was damage. It was then that the plaintiff came to Aronholz and said: "you brushed me". The incident occurred while the back portion and wheels of the van were protruding into the street and the front portion of the van was on the sidewalk.
Aronholz's Examination Before Trial January 25, 2006, p. 27-43).
DEFENDANT CONCEPT'S MOTION FOR SUMMARY JUDGMENT
Legal Standards A plaintiff who brings a personal injury action seeking damages premised on defendant's negligence carries the burden of establishing defendant's negligence as the proximate cause of plaintiff's injury ( see Narducci v. McRae 298 AD2d 443, 748 NYS2d 764 [2nd Dept. 2002]; Tomlinson v. Board of Education of the City of New York, 183 AD2d 1023, 583 NYS2d 664 [3d Dept. 1992]; City of Peresluha v. New York, 60 AD2d 226, 400 NYS2d 818 [1st Dept. 1977]).
It is also settled law that, in order to maintain a cause of action premised on negligence, a plaintiff is required to demonstrate a duty owed that was breached by the defendant causing harm to plaintiff and defendant's negligence was a substantial factor in bringing about the injury ( see Solomon v. City of New York, 66 NY2d 1026, 489 NE2d 1294; 499 NYS2d 392; Akins v. Glens Falls City School District, 53 NY2d 325, 333; 424 NE2d 531; 441 NYS2d 644; Rugg v. State of New York, 284 A.D.179, 131 NYS2d [3d Dept. 1954]).
Our Courts have repeatedly examined the term "substantial factor" and its application to circumstances where the central issue is whether defendant's negligence was the primary cause of plaintiff's injury. ( see Ortiz v. Kinoshita Co., Ldt., 30 AD2d 334, 292 NYS2d 48 [1st Dept. 1968]). For example, the Court of Appeals, in Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 414 NE2d 666, 434 NYS2d 166, examined whether a superseding cause or other factors intervened to break the nexus between a contractor's negligence and plaintiff's injury. Judge Cooke, writing on behalf of a unanimous Court, stated:
"There are certain instances, to be sure, where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law. Those cases generally involve independent intervening acts which operate upon but do not flow from the original negligence." Derdiarian v. Felix Contractor Corp., 51 NY2d 308, 315-316 (1980).
In Green v. New York City Housing Authority, 82 AD2d 780, 440 NYS2d 654 [1st Dept. 1981], aff'd 55 NY2d 966, plaintiff brought an action against a premises owner alleging "negligence in the maintenance of its premises" contending that a door which came loose fell causing injury to plaintiff. The Court dismissed plaintiff's complaint finding that "a door is not an inherently dangerous instrumentality", and although defendant was negligent in failing to repair the door after notice of the defect, the accident was caused "by the mother's placement of the door against the wall, an act which the authority is not responsible." Manifestly, the Court in Green determined that defendant's failure to repair the door was not a substantial factor causing the accident which ensued or plaintiff's injury.
In a similar case, the bathroom door in plaintiff's apartment came off its hinges and although the defendant Housing Authority was notified, it was not repaired. At some point the door fell injuring plaintiff. Murray v. New York City Housing Authority, 269 AD2d 288, 289, 703 NYS2d 140 (1st Dept. 2000). The court determined that dismissal of plaintiff's complaint was mandated, stating that: "while we are cognizant of the Housing Authority's negligence in failing to repair the door, it is clear that the sole proximate cause of plaintiff's injuries was not the Housing Authority's negligence, but plaintiff's decision to place a heavy, unsecured door upright, and embraced, in the bathroom doorway." Murray v. New York City Hous. Auth., supra 269 AD2d at 289.
Even in situations where negligence and proximate cause may overlap "in the proof and theory which supports each of them," the Court in Sheehan v. New York, 40 NY2d 496, 501 (1976) said that they are not the same conceptually. "Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint." In Sheehan, supra, the Court was required to examine the conduct of a bus driver who parked the bus he was operating at an angle causing the rear portion of the bus to partially obstruct the lane for moving vehicles. The argument raised centered on whether failure to pull the bus along side the curb constituted prima facie negligence on the part of the bus driver. The Court nevertheless concluded that "the conceded negligence of the sanitation truck was the sole proximate cause of the injuries and that the continued presence of the bus in the traveling lane at the time it was struck, merely furnished the condition or occasion for the occurrence of the event rather than one of its causes". (cf. Rivera v. City of New York, 11 NY2d 856. 182 NE2d 284, 227 NYS2d 676; Ryan v. New York Cent. R.R. Co., 35 N.Y.210; Klein v. Herlim Realty Corp., 184 Misc 852 [Boteins J.], aff'd 269 App. Div.934).
Sheehan was tried before the enactment of comparative negligence (CPLR 1411).
It is abundantly clear from an analysis of cases, such as Green, Murray and Sheehan, that negligent conduct standing alone will not necessarily entitle the party bringing the action to prevail unless proof is also provided that defendant's negligence is a substantial cause of the accident. ( see Derdiarian, supra; Potter v. Korfhage, 240 AD2d 717, 659 NYS2d 323 [2nd Dept. 1997]; Gleason v. Reynolds Leasing Corp., 227 AD2d 375, 642 NYS2d 79 [2nd Dept. 1996]).
Analysis
In the case at bar, defendant Concept's actions were not a substantial cause or proximate cause of the accident and injury purportedly sustained by the plaintiff Solis.
A case with similarities to the case at bar is Ventricelli v. Kinney System Rent A Car, Inc., 59 AD2d 869,399 NYS2d 237 (1st Dept. 1977), where the Court decided that an automobile lessor, who leased a car to plaintiff with a defective trunk lid, was not liable to a plaintiff who, while standing behind the car attempting to slam the trunk lid shut, was injured by the negligent driving of another party. The First Department Court held: "No act of the defendant-appellant Kinney can be said to have caused the Maldonado car to injure the plaintiff in this unfortunate fortuitous set of circumstances." Ventricelli v. Kinney System Rent A Car, Inc., 59 AD2d 869. In Derdiarian, supra, the Court of Appeals analyzed Ventricelli, stating: "although the [lessor's] negligence undoubtedly served to place the injured [plaintiff] at the site of the accident, the intervening act [by the driver Maldonado] was divorced from and not the foreseeable risk associated with the [lessor's] original negligence. . . . . In short, the negligence of the [lessor] merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated." Derdiarian v. Felix Contractor Corp., supra, 51 NY2d at 315-316.
Likewise, in the case at bar, even if Concept's actions somehow placed Solis near the site of the accident, which is plaintiff's contention, it was the alleged intervening act if any by the truck driver, Aronholz, (if plaintiff's story is believed), and/or by Solis himself, considering where he was standing, which is the proximate cause of the accident.
Another recent First Department case is Singh v. Kolcaj Realty Corp., 283 AD2d 350, 725 NYS2d 37 [1st Dept. 2001], where a plaintiff — like Solis in the case at bar — sought to hold a property owner liable for injuries he sustained when he was struck by a car. The injured plaintiff sued the realty company that owned the parking lot and the driver of the offending vehicle contending that the realty company was negligent in allowing the parking lot to exceed the capacity specified in its certificate of occupancy. The Court pointed out first that a violation of an ordinance as the result of the failure to abide by the certificate of occupancy does not establish negligence as a matter of law. The Court then held "even if the creation of an extra parking space were assumed to constitute negligence, it is not the proximate cause of plaintiff's injury." Here again the Court turned to its prior holding in cases such as Derdiarian, supra and Murray, supra stating: "Appellant's presumed negligence falls into that category of independent intervening acts which operate upon but do not flow from the original negligence and, therefore, constitutes an unforeseeable consequence of the original negligent act as a matter of law." ( see Deriderian, supra, 51N.Y.2d at p. 315).
It is evident from the record before this Court that Solis decided where to park his vehicle, which according to Bellizzi, his expert, Solis's vehicle extended in the street which positioned the raised hatchback to come into contact with Trucknology's vehicle. It was Solis's decision to stand in proximity to his vehicle and the roadway which potentially exposed Solis to the occurrence which precipitated the claim asserted by him.
Therefore, defendant Concept's Motion for Summary Judgment is granted, and plaintiff's complaint, and any cross claims, are dismissed against Concept.
DEFENDANTS ARONHOLZ/TRUCKNOLOGY'S MOTION FOR SUMMARY JUDGMENT
Defendants Aronholz's motion for summary judgment is premised on the contention that plaintiff Solis did not sustain a "serious injury" within the meaning of Insurance Law 5102(d), which provides that:
"Serious injury" means a personal injury which results in . . . 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.
In support of their motion, defendants submit the affirmed report of an orthopedic surgeon, Dr. Jerry A. Lubliner, who examined Solis on July 26, 2006 and reviewed numerous medical records of treatment plaintiff received from a variety of medical providers including a record prepared by Downtown Physical Medicine Rehabilitation by Dr. Levinson.
Plaintiff's opposition to defendant's motion includes a plethora of medical records which are not certified and are for the most part offered, without explanation, regarding their relevancy to his action. For example, plaintiff's opposing papers fail to provide detailed information regarding his disability which relates back to a work accident on May 29, 1997. Dr. Levinson who is plaintiff's treating physician, for the injuries plaintiff sustained as a result of the 1997 accident, identifies plaintiff's prior injury as a myofacial cervical pain syndrome or "traumatic cervical spinal pain syndrome," also traumatic lumbar spine pain syndrome or low back pain syndrome and groin and abdominal pain "status post inguinal hernia repair". The many one page reports submitted by plaintiff, prepared by Dr. Levinson, are not affirmed and are confined to plaintiff's 1997 accident. They nevertheless show that plaintiff continuously received treatment for the 1997 injury in 2004, 2005 and 2006. However, Dr. Levinson, based on the record before this court, never indicates whether he was informed that Solis sustained injuries to his knees that were derived from the August 7, 2004 accident or that Dr. Ronald Krinick treated plaintiff for such injuries.
Dr. Krinick's affirmed report incorporates as part of plaintiff's history that Solis, was transported by ambulance after the accident to a medical facility identified as Edward Hill Medical which did not render treatment to the plaintiff. However, no records are presented by plaintiff to establish that he went to this medical facility or explain why he did not receive treatment. Dr. Krinick also states that the history provided to him, presumably by Solis was that Solis was seen by a "primary care physician", (who has not been identified) three days after the accident. The history portion contained in Dr. Krinick's affirmed report also states without explanation that plaintiff came under the care of a physician by the name of Dr. Khakhar on August 27, 2004.
Dr. Lubliner's (defendant's examining physician) affirmed report also indicates that he reviewed medical records from another medical facility which presumably provided medical treatment to plaintiff. Dr. Lubliner states the records of Midtown Medical Practice, presumably prepared by another physician, Dr. Khakhar, noted that plaintiff complained of pain in his right wrist, midback, both knees and both feet on August 27, 2004, and yet as Dr. Lubliner points out, plaintiff never made such complaints when he saw Dr. Levinson on September 1, 2004.
Dr. Lubliner's five (5) page report recorded a lengthy history regarding Solis' complaints and specifically mentions his review of magnetic resonance imaging reports of Solis's cervical spine, lumbar spine, right knee and left knee. He also specifically identifies plaintiff's gout in his left knee, as a medical condition pre-existing the August 7, 2004 accident. Dr. Lubliner also refers to the presence of a medical condition, described as chondrocalcinosis found by plaintiff's treating orthopaedic physician Dr. Krinick. Yet, Dr. Lubliner does not come forward and provide this court with a decisive opinion illustrating that plaintiff's gout condition in his left knee and or chondrocalcinosis have as their etiology a pre-existing condition.
Chondrocalcinosis of the articular and fibrocartilage of the knee is a rheumatologic disorder with varied clinical manifestation due to the precipitation of calcium pyrophosphate dehydrate crystals in connective tissues (Wikipedia.org chondrocalcinosis) when calcium crystal called calcium pyrophosphates accumulate in the fluid surrounding joints causes inflamation in the cartilage causing swelling and pain in the affected joint which can lead to chronic disability. (See www.mountswai.org.chondrocalcinosis).
The uncertified or unaffirmed medical records submitted by plaintiff, with the exception of the affirmed report of Dr. Ronald Krinick, are challenged by defendant's attorney as records without probative value. ( See Grasso v. Angeranse, 79 NY2d 813 814-815, 588 NE2d 76, 580 NYS2d 178; Patterson v. NY Alarm Response Corp. , 45 AD3d 656 , 850 N.Y.S.3d 114 [2nd Dept. 2007]). However, defendants' reliance upon the cases such as Grasso, supra and Patterson are misplaced. Although contained in a footnote, the Court of Appeals in Pommels v. Perez , 4 NY3d 566 , 830 NE2d 278, 797 NYS2d 380 held that although "MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence." Moreover, the issue regarding whether the court may entertain unsworn or unaffirmed report and records presented in opposition to a motion for summary judgment has been addressed by the Court in Kearse v. New York City Transit Authority, 16 AD3d 45, 789 NYS2d 291 [2d Dept. 2005] where the Court stated:
"A defendant may submit unsworn medical reports and records of the injured plaintiff's physician in support of a motion for summary judgment in order to demonstrate the lack of a serious injury (see Pagano v. Kingsbury, 182 AD2d 268, 271, 587 NYS2d 692 [1992]; see also Peschanker v. Loporto, 252 AD2d 485, 675 NYS2d 363 [1998]). In so doing, however, the defendant opens the door for the plaintiff to rely upon these same unsworn or unaffirmed reports and records in opposition to themotion (see Pech v. Yale Taxi Corp., 303 AD2d 733, 758 NYS2d 110 [2003]."
Whether unaffirmed or uncertified medical records may be admissible has also been reviewed in cases such as Navedo v. Jaime , 32 AD3d 788 , 822 NYS2d 43 [1st Dept. 2006]; Iacobazzo v. Asad , 7 AD3d 367 , 776 NYS2d 464 [1st Dept. 2004]; Toledo v. A.P.O.W. Auto Repair/Towing, 307 AD2d 233, 762 NYS2d 495 [1st Dept. 2003].
Dr. Lubliner also indicates that plaintiff's gout condition in his left knee diagnosed by Dr. Levinson required plaintiff to ambulate with crutches suggesting that plaintiff's left knee problem preceded the 2004 accident.
Dr. Lubliner also noted that plaintiff was taking medications neurontin and celebrex prior to the 2004 accident. Dr. Lubliner's physical examination of plaintiff included a series of range of motion tests. Dr. Lubliner concluded that plaintiff's range of motion was normal and "there is no evidence of instability of his knees." Moreover, while his examination did set forth whether plaintiff's responses were normal or abnormal, his report fails to indicate what if any objective tests he utilized to determine whether plaintiff's range of motion is normal. ( See Simms v. APA Truck Leasing Corp. , 14 AD3d 322 , 788 NYS2d 63 [1 st Dept. 2005]; Melly v. 4G's Truck Renting Co., Inc. , 16 AD3d 26 , 789 NYS2d 277 [2nd Dept. 2005]; Noble v. Ackermna, 252 AD2d 392, 394, 675 NYS2d 86 [1st Dept. 1998]).
Dr. Lubliner nevertheless concluded that Solis' responses were subjective, stating: "He has subjective loss of range of motion. He has no evidence of erythema, ecchymosis, swelling or spasm. He has pre-existing injuries to his neck and back", referring to plaintiff's 1997 work accident. As to plaintiff's left knee Dr. Lubliner indicates that plaintiff's gout which existed prior to the August 7, 2004 accident would "account for the chondrocalcinosis" condition found by Dr. Krinick. It is true that Dr. Lubliner also commented about the crystalline formation in plaintiff's right knee, stating that this condition also pre-existed the August 7, 2004 accident. Here, defendant's attorney argues that "It is generally accepted that gout is linked to meniscal tears" appearing at the sites of dense crystalline deposits and refers this Court to Harrison's Principles of Internal Medicine. Whether this reference is accurate is of no consequence since this Court is not engaged to examine medical authorities to determine the viability of medical opinions.
Dr. Lubliner concludes that plaintiff's gout is normal although he acknowledges that plaintiff complains of pain in both knees when he walks. In sum, defendant's contention is that dismissal of plaintiff's action is warranted since Solis's pre-existing medical conditions or intervening medical problems "interrupt the chain of causation between the accident and claimed injury" citing Pommells v. Perez, 4 NY3d 566, 572 (2005). Although defendants' attorney's reference to Pommels, supra, is accurate, it cannot be used to discard the affirmed opinion provided by Dr. Krinick who attributes plaintiff's injuries such as a meniscus tear to the accident which occurred at Concept's store on August 7, 2004.
It is also evident that disputed medical contentions raise questions of fact which require resolution by a jury. Dr. Lubliner's opinion is also inefectual since he fails to comment on the MRI reports he reviewed regarding plaintiff's meniscus tear and his anterior cruciate ligament injury. By failing to comment concerning the pre-operative diagnosis and the post-operative diagnosis of plaintiff's torn medial meniscus injury and the surgery performed by Dr. Krinick, defendant's challenge to the viability of plaintiff's claim is without substance. Clearly, Dr. Krinick's findings and his unchallenged opinion regarding plaintiff's medical condition is sufficient to create issue of fact that plaintiff sustained a serious injury ( see Caballero v. Fev Taxi Corp , 49 AD3d 387 , 852 NYS2d 776, [1st Dept. 2008]).
The Court of Appeals has often stated that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" ( Toure v. Avis Rent-A-Car Sys., 98 NY2d 345, 350, quoting Dufel v. Green, 84 NY2d 795, 798). In that vein, the Court of Appeals has rejected the contention that the question of whether a plaintiff sustained a serious injury is always a question of fact for the jury and, instead, has held that the issue of whether a claimed injury falls within the statutory definition of a "serious injury" is a question of law for the courts in the first instance, which may properly be decided on a motion for summary judgment ( Licari v.Elliott, 57 NY2d 230, 237; Rubensccastro v. Alfaro , 29 AD3d 436 , 437).The issue is whether plaintiff's prior 1997 injury precludes him from asserting a damage claim based upon injuries he allegedly sustained to parts of his body such as his knees, from a subsequent accident which were not or are not, based on the record before this court, the subject matter of the prior 1997 accident.
Consequently, defendants Aronholz's motion for summary judgment is denied.
This constitutes the decision and order of this Court.