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Maggie LARKINS, Plaintiff, v. STAR CRUISER TRANSPORTATION, INC., Defendant.
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1, 2
Answering Affidavits — Exhibits (Memo) 3, 4
Replying Affidavits (Reply Memo) 5
Motion sequence numbers 2 and 3 are consolidated for disposition.
Maggie Larkins (plaintiff) brings this action by a Summons and Verified Complaint on February 3, 2015, alleging negligence and seeking damages for personal injuries sustained on November 10, 2014, while a passenger in an Access-A-Ride vehicle operated by Star Cruiser Transportation, Inc. (defendant) and driven by their employee Randolph Dubose (Dubose), a non-party to this litigation. The Metropolitan Transportation Authority (MTA) is the parent affiliate who oversees the New York City Transit Authority (NYCTA) and the NYCTA administers the Access-A-Ride program (AAR program), the paratransit service for New York City. Defendant, Star Cruiser Transportation, Inc., is an AAR vendor licensed to operate Access-A-Ride vehicles in New York City.
According to plaintiff, on the date of the accident she entered the Access-A-Ride vehicle and confirmed her identity to Dubose, but before she could put on her seatbelt, Dubose made a right turn onto Atlantic Avenue and Pennsylvania Avenue causing plaintiff to fall out of her seat, into the aisle. Plaintiff alleges injuries to her left wrist, left elbow, left knee, and to her cervical and lumbar spine. Before the Court is a motion by plaintiff for summary judgment pursuant to CPLR 3212, on the issue of liability (motion sequence 2) and defendant has filed papers in opposition to plaintiff's motion. Also before the Court is a motion by defendant for summary judgment, pursuant to CPLR 3212, dismissing plaintiff's Complaint on the grounds that the injuries claimed do not satisfy the “serious injury” threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 3). Plaintiff has filed opposition papers to defendant's motion and defendant has submitted a reply.
A. PLAINTIFF'S SUMMARY JUDGMENT MOTION ON LIABILITY [MS 2]
SUMMARY JUDGMENT STANDARD
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 ; Andre v. Pomeroy, 35 NY2d 361, 364 ; Winegrad v. NY Univ. Medical Cntr., 64 NY2d 851, 853  ). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212[b] ). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 ; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v. Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974] ). Once a prima facie showing has been made, however, “the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution” (Giuffrida v. Citibank Corp., 100 NY2d 72, 81 ; Zuckerman v. City of NY, 49 NY2d 557, 562  ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404  ). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc., 65 NY2d 625, 626 ; Boyd v. Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 ; CPLR 3212[b] ).
In the instant case, defendant is considered a common carrier, as a vendor of the NYCTA and is subject to the same duty of care as any other potential tortfeasor — i.e, the duty of reasonable care under all of the circumstances of the particular case (see Bethel v. New York City Tr. Auth., 92 NY2d 348, 351; see also Houston v. New York City Tr. Auth, 143 AD3d 860 [2d Dept 2016]; San Filippo v. New York City Tr. Auth, 105 AD3d 665 [1st Dept 2013] ).
In addition, plaintiff alleges that defendant's liability derives from the improper conduct of defendant's employee/bus driver at the time of the accident. Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment” (Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896 [2d Dept 2009]; see Judith M v. Sisters of Charity Hosp., 93 NY2d 932, 933  ). However, the employer bears no vicarious liability where the employee committed the tort for personal motives unrelated to the furtherance of the employer's business (see Yildiz v. PJ Food Service, Inc., 82 AD3d 971, 972 [2d Dept 2011]; Schuhmann v. McBride, 23 AD3d 542, 543 [2d Dept 2005]; see also Shapiro v. Good Samaritan Regional Hosp., 55 AD3d 821 [2d Dept 2008] ).
“An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his act may be reasonably said to be necessary or incidental to such employment” (Felberbaum v. Weinberger, 54 AD3d 717 [2d Dept 2008] quoting Oliva v. City of New York, 297 AD2d 789 [2d Dept 2002] ). An employer is vicariously liable for the torts of its employee, even when the employee's actions are intentional, if the actions were done while the employee was acting within the scope of his employment (Riviello v. Waldron, 47 NY2d 297 ; Brancato v. Dee & Dee Purchasing, 296 AD2d 518 [2d Dept 2002] ).
Here, the Court finds that Dubose was acting within the scope of his employment with defendant at the time of plaintiff's accident; and, therefore, any alleged negligent act or acts by Dubose, while in the scope of that employment, may be imputed to defendant (see e.g. Ryga v. New York City Tr. Auth., 17 AD3d 561 [2d Dept 2005] ).
In support of her liability motion, plaintiffs submitted, inter alia, a copy of the pleadings; her Examination Before Trial (EBT) transcript, dated March 24, 2016; the EBT transcript of by Marty Hosein (Mr. Hosein), the defendant's operations manager; an attorney affirmation; a verified Bill of Particulars; an eight page unaffirmed and unsworn post-accident investigation report (labeled a ParaTransit Report)—which includes a one page unsworn but allegedly signed statement from Dubose regarding how the accident occurred 1 (see Notice of Motion, Exhibit E). Dubose left the employment of the defendant after the accident and was not deposed by either party. The post-accident investigation report was prepared by Shirley Inniss (Inniss), the defendant's dispatch supervisor after she received the details of the accident from Dubose and Mr. Waltz, a defendant employee and road supervisor. Innis then sent the report to the NYCTA, as required by the NYCTA guidelines.
Plaintiff argues that Dubose operated the Access-A-Ride bus negligently by not allowing plaintiff time to be seated and seat-belted before moving the bus, causing plaintiff to slide, fall and suffer severe personal injuries. Plaintiff also argues that defendant is liable because Dubose violated defendant's company policy by not ensuring that plaintiff's seatbelt was securely fastened prior to moving the bus. Mr. Hosein testified at his EBT that the road supervisor, Mr. Waltz, upon interviewing Dubose should have asked Dubose if he checked whether plaintiff was wearing her seatbelt before Dubose put the bus in motion. Mr. Hosein further stated that Mr. Waltz should have documented that information in the ParaTransit Report (see Notice of Motion, Exhibit D, Hosein's Tr. at 93-94). Mr. Hosein testified that the ParaTransit Report did not indicate whether Mr. Waltz asked Dubose if plaintiff was wearing a seatbelt (id. at 90).
In opposition, defendant submits its attorney's affirmation and an uncertified and alleged NYCTA seatbelt requirement policy.
In order “to prevail on a motion for summary judgment on the issue of liability, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault” (Derieux v. Apollo NY City Ambulette, Inc., 131 AD3d 504, 504-505 [2d Dept 2015]; Zhu v. Natale, 131 AD3d 607, 608 [2d Dept 2015] ). “[A] plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” (Phillip v. D & D Carting Co., Inc., 136 AD3d 18, 23 [2d Dept 2015] ). “Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault” (id.; see Lu Yuan Yang v. Howsal Cab Corp., 106 AD3d 1055 [2d Dept 2012] ).
Here, the crux of plaintiff's negligence claim against defendant arises out of Dubose's alleged violation of defendant's internal seatbelt policy and procedure. Plaintiff proffers and relies upon Mr. Hosein's EBT testimony to support her contention that Dubose violated defendant's seatbelt policy, which is administered by the NYCTA. Particularly, at his EBT, Mr. Hosein testified that drivers are trained to make sure customers have their seatbelts fastened and that they are supposed to make sure everyone is buckled up before driving off (see Notice of Motion [MS 2], exhibit D, Hosein's Tr at 53). Mr. Hosein stated that Dubose was not required to physically buckle plaintiff's seatbelt but he was required to make sure that plaintiff had it on and it was fastened (id. at 76). Mr. Hosein also stated that the road supervisor, Mr. Waltz, should have asked whether plaintiff was wearing her seatbelt before Dubose put the bus in motion. Mr. Hosein further averred that Mr. Waltz should have documented that information in the ParaTransit Report (id. at 93), but the ParaTransit report did not evince that Mr. Waltz asked Dubose such a question (id. at 90).
After review of the complete record before it, the Court finds that plaintiff has failed to meet her prima facie burden of entitlement to judgment as a matter of law on her liability motion against defendant in several respects. First, plaintiff cannot rely on upon an alleged internal rules violation as the sole basis for its negligence claim against defendant. As previously established herein, defendant is a common carrier, and thus is subject to the ordinary duty of reasonable care standard as a potential tortfeasor for any negligence claims. The Court of Appeal has held that a “violation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence” (Gilson v. Metropolitan Opera, 5 NY3d 574, 590 ; quoting Sherman v. Robinson, 80 NY2d 483, 489 n 3  ). In Gibson, the Court of Appeals held that the defendant's (Metropolitan Opera) internal policy which provided that “[t]icket holders should be escorted to their seats with the aid of flashlights when the House Lights are low, and particularly be requested to watch their step” cannot be relied upon by plaintiff, because these internal guideline go beyond applying the standard of ordinary care and cannot serve as a basis for imposing liability (see id.; see also Conrad v. County of Westchester, 259 AD2d 724, 725 [2d Dept 1999] ).
This same legal precedent is analyzed by the Appellative Division, Second Department in Hines v. New York City Tr. Auth, 264 AD2d 506, 507 [2d Dept 1999]. In Hines, plaintiffs were allegedly injured when a bus owned and operated by NYCTA and Metropolitan and Bronx Surface Transportation Operating Authority (MABSTOA), and driven by Gillott, was struck by a vehicle owned by the defendant Carmen Baez, and driven by the defendant Jose Santos. In support of their argument for liability, plaintiffs relied on the bus defendants' internal post-accident investigative report, which noted that Gillott failed to take his foot off the gas pedal to cover the brake as he proceeded through the intersection, in violation of a NYCTA internal rule (id.). The Appellate Division, Second Department opined that plaintiffs failed to raise an issue of fact for trial based on defendants' internal post-accident investigative report, as the report and the NYCTA internal rule, imposed a duty of care which was higher than that imposed by law (see id.; see also McDaniel v. Codi Transport, Ltd., 149 AD3d 595, 595 [1st Dept 2017] [finding that NYCTA internal policies and procedures do not provide the standard of care in a negligence case”]; Byrd v. Walmart, Inc., 128 AD3d 629, 630 [2d Dept 2015] [“the claimed violation by the defendant's employees of an alleged internal rule or guideline was insufficient to raise a triable issue of fact”]; Rahimi v. Manhattan & Bronx Surface Tr. Operating Auth., 43 AD3d 802, 804 [1st Dept 2007] [finding that “the Transit Authority's rules requiring that its drivers anticipate that other drivers will violate the rules of the road impose a standard of care higher than the common law”] ).
Similarly, in Asantewaa v. City of New York, plaintiff was injured when the ambulance in which she was a passenger suddenly stopped, causing plaintiff, who was seated on a bench in the rear portion of the ambulance and not wearing a seatbelt, to fall off the bench (90 AD3d 537, 537 [1st Dept 2011] ). The Asantewaa Court found that the New York City Fire Department's internal rules requiring that its employees ensure that passengers in emergency vehicles wear seatbelts, imposed a greater standard of care upon defendant than that imposed by law, and thus, a violation of said rules cannot serve as basis for plaintiff to impose liability upon defendant (id. at 538).
Here, Hosein testified that Dubose and other drivers were trained and required to make sure all passengers on defendant's bus have their seatbelts securely fastened, pursuant to a seatbelt policy set forth by the NYCTA for its AAR vendors. However, consistent with Asantewaa and Hines, this Court finds that these internal guidelines go beyond the standard of ordinary care and cannot serve as a basis for imposing liability upon defendant (see Asantewaa, 90 AD3d at 537; Hines, 264 AD2d at 507).
Secondly, the Court also finds that plaintiff's evidence fails to establish that Dubose operated the Access-A-Ride vehicle in a negligent and perilous manner. Plaintiff testified that after getting onto the Access-A-Ride bus, she did not have an opportunity to fasten her seat belt before falling out of her seat (see Notice of Motion, exhibit C, Larkins' Tr at 39). When asked “what was the bus doing, how was it moving when the incident occurred?”, plaintiff responded “real quick” (id. at ln 14), but testified that she did not know how fast the bus was traveling when she fell from her seat (id. at 40). She testified that while the bus was making the turn she did not observe a traffic light at the intersection or ever see the color of a traffic light (id. at 40, 41). The report is also silent on the manner in which Dubose operated the vehicle. The Court finds plaintiff's conclusory assertions regarding the speed of the Access-A-Ride bus are insufficient to establish that Dubose operated the vehicle in a negligent and perilous manner. Therefore, the Court finds that plaintiff has failed to establish that there are no triable issues of fact, and thus, her motion for summary judgment on the issue of liability must be denied.
Since plaintiff failed to meet her prima facie burden of establishing entitlement to judgment as a matter of law, the Court need not consider the sufficiency of the defendant's opposition papers (see Pillasagua, 135 AD3d at 844; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 642  ).
B. DEFENDANT'S SUMMARY JUDGMENT MOTION ON SERIOUS INJURY PURSUANT TO INSURANCE LAW § 5102(D) [MS 3]
SERIOUS INJURY SUMMARY JUDGMENT STANDARD
A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine “serious injury” categories as set forth in Insurance Law § 5102(d) (see Licari v. Elliott, 57 NY2d 230  ). Insurance Law § 5102(d) defines a “serious injury” as:
“ a personal injury which results in death;
 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 [the 90/180 category].”
The Court must determine whether, as a matter of law, plaintiff has sustained a “serious injury” under one or more of the claimed categories. “Serious injury” is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104[a] ). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to “ ‘weed out frivolous claims and limit recovery to significant injuries’ ” (Toure v. Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 , quoting Dufel v. Green, 84 NY2d 795, 798  ). As such, to satisfy the statutory threshold, plaintiff is required to submit competent and objective medical evidence of his or her injuries (id. at 350). Plaintiff's subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).
The issue of whether a claimed injury falls within the statutory definition of “serious injury” is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). Where a defendant is the movant, the defendant bears the initial burden of establishing, by submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a “serious injury” as defined in section 5102(d) (see Toure, 98 NY2d at 352; Gaddy v. Eyler, 79 NY2d 955, 956-57  ). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question as to whether a serious injury exists (see Franchini v. Palmieri, 1 NY3d 536, 537 ; Rubensccastro v. Alfaro, 29 AD3d 436, 437 [1st Dept 2006] ).
“In cases such as the present one, a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim” (Grossman v. Wright, 268 AD2d 79, 83-84 [2d Dept 2000] ). “This established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law” (id.; see Gaddy v. Eyler, 79 NY2d 955  ). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman, 268 AD2d at 84). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id.; Kauderer v. Penta, 261 AD2d 365 [2d Dept 1999] ).
The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident (see Licari, 57 NY2d at 236). The words “substantially all” mean that the person has been “curtailed from performing his usual activities to a great extent rather than some slight curtailment” (id.).
Plaintiff alleges that as a result of the accident, she suffered left wrist pain, left elbow pain and left knee pain, as well as, lumbar and cervical spine pain and stiffness. In support of its motion for summary judgment on the issue of serious injury, defendant submits, inter alia, a copy of the pleadings; a copy of plaintiff's EBT testimony; an affirmed report from Jean-Robert Desrouleaux, M.D., dated September 26, 2016 (Dr. Desrouleaux's report), and an affirmed orthopedic report from Dr. Paul G. Kleinman, M.D., an orthopedic surgeon (Dr. Kleinman's report). In opposition, plaintiff submits an affirmed medical report from Dr. Boris Tsatskis, M.D., dated March 31, 2017 (Dr. Tsatskis' report).
Upon review of the records, the Court finds that defendant has partially sustained its initial burden of establishing its prima facie case that plaintiff did not suffer a “serious injury”, pursuant to Insurance Law § 5102(d), as a result of the accident on November 10, 2014 (see Jean-Pierre v. Park, 138 AD3d 1064 [2d Dept 2016]; Olagunju v. Anna & Diane Cab Corp., 139 AD3d 924 [2d Dept 2016] ).
1. Injuries to plaintiff's spine
In support of its motion, defendant submits Dr. Desrouleaux's report, wherein Dr. Desrouleaux stated that he used an objective test to determine that plaintiff did not suffer a range of motion limitations to her thoracic spine (see Notice of Motion [MS 3], exhibit F, at 4). Additionally, while Dr. Desrouleaux found loss of a range of motion to plaintiff's cervical spine flexion of 5 (45/50); loss cervical extension of 10 (50/60); decrease range of motion in the lumbar spine flexion of 10 (50/60), loss of lumbar spine extension of 5 (20/25) and loss RT lateral bending of 5 (20/25), the Court finds these limitations minor and de minimus, and thus, not significant within the meaning of Insurance Law § 5102 [d] (see e.g. Waldman v. Dong Kook Chang, 175 AD2d 204 [2d Dept 1991] [finding that 15 degree loss in range of motion was a minor limitation of movement and not significant within the meaning of the statute]; Irizarry v. Lindor; 110 AD3d 846 [2d Dept 2013]; cf Mazo v. Wolofsky, 9 AD3d 452 [2d Dept 2004] [finding that 20 degree loss in range of motion was significant under the statute] ).
Moreover, while Dr. Desrouleaux found that plaintiff had an exacerbation of a pre-existing cervical spine degenerative disease, and exacerbation of a pre-existing lumbar spine degenerative disease with left lumbosacral radiculopathy, the resulting range of motion restriction to the cervical and lumbar spine are slight and minor (see Notice of motion [MS 3], exhibit F at 5; see also cf Washington v. Asdotel Enterprises, Inc., 66 AD3d 880, 880 [2d Dept 2008] [the Court denied defendant's summary judgment motion, where defendant's doctor found significant limitations in the plaintiff's cervical and lumbar spine and defendant's doctor concluded that the plaintiff suffered from a pre-existing degenerative disc disease in the cervical and lumbar spine, but failed to address the plaintiff's allegation in his bill of particulars that the subject accident exacerbated the pre-existing degenerative conditions in his cervical and lumbar regions] ). Moreover, although Dr. Kleinman diagnosed plaintiff with cervical strain, lower back and thoracic strain, these injuries are not considered serious injury (see Notice of Motion, exhibit G, see also Byam v. Waltuch, 50 AD3d 939, 940 [2d Dept 2008] [“[s]trains and sprains are not considered serious injuries under Insurance Law § 5102(d)”] ).
In opposition to defendant's prima facie showing, however, plaintiff submits Dr. Tsatskis' report wherein Dr. Tsatskis opined that he used an objective standard that revealed varying degrees of range of motion limitations to plaintiff's lumbar spine [e.g. flexion: 70/90] (see Aff in Opp, exhibit A). Dr. Tsatskis further opined that the range of motion limitations are causally related to the accident and that the plaintiff's “lumbar radiculopathy has [been] exacerbated by the November 10, 2014 accident” (see id.). The Court thus finds that Dr. Tsatskis has sufficiently addressed Dr. Desrouleaux's degenerative findings with respect to the cervical and lumbar spine through his opinion that the range of motion limitations are causally related to accident of November 10, 2014 (see Fraser-Baptiste v. New York City Trans. Auth., 81 AD3d 878, 879 [2d Dept 2011] [“the findings of the plaintiff's doctors that her injuries were indeed traumatic and were causally related to the collision of December 9, 2007, implicitly addressed the defendants' contentions that the injuries were degenerative”] ). Therefore, given the conflicting expert opinions, as to the origin of plaintiff's cervical and lumbar spine injuries, the Court denies the branch of defendant's motion seeking to dismiss plaintiff's claims of serious injury to her cervical and lumbar spine (see Pommells v. Perez, 4 NY3d 566, 576 ; see also Wilcoxen v. Palladino, 122 AD3d 727, 728 [2d Dept 2014] [finding that “in light of the conflicting expert medical opinions submitted by the parties, the Supreme Court properly denied the defendants' motion for summary judgement dismissing the complaint”]; Garcia v. Long Island MTA, 2 AD3d 675, 675 [2d Dept 2013] ).
2. Injuries to plaintiff's thumb
Moreover, defendant sustained its initial burden that plaintiff did not sustain serious injury to her left thumb, through the submission of Dr. Kleiman's report, wherein Dr. Kleiman indicated that he used an objective test that revealed that plaintiff does not have range of motion loss to her left thumb (id. exhibit G, at 2).2 In opposition, plaintiff's medical experts do not address Dr. Kleiman's findings. Therefore, the branch of defendant's motion for summary judgment on the issue of serious injury with respect to plaintiff's left thumb is granted.
3. Injuries to plaintiff's left elbow, left wrist, and left knee
Notwithstanding the Court's findings above, the Court finds that defendant failed to sustain its initial burden of entitlement to judgment as a matter of law regarding plaintiff's left elbow since defendant did not submit medical evidence with respect to the injuries to plaintiff's left elbow. Defendant also failed to meet its initial burden with respect to plaintiff's left knee, as Dr. Kleinman opined that range of motion to plaintiff's left knee was “0-105 out of 0-150” (see Notice of Motion, exhibit G at 2). Therefore, Dr. Kleinman's finding demonstrates that plaintiff suffered a significant limitation to range of motion in her left knee (see Mazo v. Wolofsky, 9 AD3d at 452 [finding that 20 degree limitation in range of motion is significant under the statute] ). Additionally, defendant did not submit competent medical evidence with respect to any alleged injuries to plaintiff's left wrist. Therefore, the branch of defendant's motion for summary judgment on the issue of serious injury with respect to plaintiff's left elbow, left wrist, and left knee is denied. Since defendant failed to meet its prima facie burden, the Court need not consider the sufficiency of the plaintiff's opposition papers with respect to the elbow, left wrist and left knee (see Pillasagua, 135 AD3d at 844; Winegrad, 64 NY2d at 642).
4. Plaintiff's 90/180 claims
Lastly, the Court finds that defendant has sustained its burden of showing that plaintiff did not suffer a serious injury under the 90/180 category. Firstly, plaintiff's own BP states that plaintiff was confined to bed for approximately “1 day and continuing intermittently” after the accident (see Notice of Motion [MS 3], exhibit D). Defendant also attached plaintiff's EBT testimony, wherein she testified that as a result of the accident she “cannot walk [ ] long distance[s], like five blocks” (id., exhibit E, Larkins' Tr at 84). She stated that when she does walk more than five blocks, her “knees give out, [her] back starts hurting worse” (id.). She further testified that she cannot buy groceries, cook, clean or perform household chores” (id. at 85). Moreover, plaintiff stated that as a result of the accident, she cannot attend to her special needs brother; she cannot walk with him to places (id.). In opposition, plaintiff fails to proffer any medical evidence to show that she was instructed by a medical professional to substantially curtail her activities of daily living. Thus, the Court finds any subjective complains of pain by plaintiff are insufficient under the 90/180 category. Therefore, the Court finds that defendant has established its prima facie case that plaintiff did not sustain serious injury under the 90/180 category and that claim is dismissed (see McFarlane v. Klein, 131 AD3d 1139,1139 [2d Dept 2015]; Lanzarone v. Goldman, 80 AD3d 667, 669 [2d Dept 2011] ).
Accordingly it is hereby,
ORDERED that the motion by plaintiff, Maggie Larkins, for summary judgment on the issue of liability is denied in its entirety; and it is further,
ORDERED that defendant, Star Cruiser Transportation Inc.'s, motion for summary judgment on the issue of serious injury is denied, except as to plaintiff's claims to her left thumb and her claims under the 90/180 category, which are dismissed; and it is further,
ORDERED that counsel for defendant, Star Cruiser Transportation Inc., is directed to serve a copy of this Order with Notice of Entry upon all parties.
This constitutes the Decision and Order of the Court.
1. The Court finds that the post-accident ParaTransit Report, including statements made by Mr. Waltz and Dubose are admissible under the “speaking agent” exception to the hearsay rule. Under this rule, statements made by agents of an employer, are inculpatory to the employer. The exception requires that: (1) the making of the statement is an activity within the scope of the agent's authority; and (2) the statements were made in the course of business or transaction for which the agent was employed (see Loschiavo v. Port Auth. of NY & N.J., 58 NY2d 1040,1041 ; Candela v. City of New York, 8 AD3d 45, 47 [1st Dept 2004] ). Both of these factors are present here. Hosein testified that Innis was assigned by defendant to prepare the ParaTransit Report and send same to the NYCTA; and to do so, Innis had to first interview Dubose and Mr. Waltz. As a result of her inquiries, she compiled the ParaTransit Report from statements by Dubose and by the field supervisor, Mr. Waltz, who was required to go to the scene of the accident and interview the driver of the Access-A-Ride vehicle. Therefore, any statements made to Innis by Dubose and Waltz, and contained in the ParaTransit Report, are admissible as an exception to the hearsay rules (see Loschiavo, 58 NY2d at 1041).
2. The Court notes that while Dr. Kleiman's report indicates that he performed range of motion tests to plaintiff's neck and back, and range of motion limitations tests of plaintiff's shoulders, these findings are immaterial to the Court's determination herein inasmuch as plaintiff did not plead injuries to those regions of her body in her BP (see Pom Chun Kim v. Franco, 137 AD3d 991, 992 [2d Dept 2016] [“the moving defendant was not required to address any alleged injuries to the lumbar region of the plaintiff's spine, since the plaintiff failed to allege in his bill of particulars that he sustained a serious injury to that area”] ).
Paul Wooten, J.
Response sent, thank you
Docket No: 1767/2015
Decided: March 19, 2018
Court: Supreme Court, Kings County, New York.
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