EDWARDS v. ALI (2022)

By notice of motion filed on August 27, 2021 under motion sequence number two, defendants Mohamed Ali and Hussein Ali (hereinafter collectively as the Ali defendants) seek an order granting summary judgment in their favor on the issue of liability dismissing the complaint and all cross claims asserted against them, on the basis that: (1) they were not negligent in causing the subject motor vehicle accident; and (2) the plaintiff Denita Edwards (hereinafter plaintiff or Edwards) did not sustain a serious injury as defined in Insurance Law 5102(d). This motion is opposed by defendants Amparo Marmolemurillo (hereinafter Marmolemurillo) and Claudia Vasquez (hereinafter Vasquez) as well as the plaintiff.

Notice of Motion

Statement of Material Facts

Affirmation in Support

Exhibits A to K

Affirmation in Opposition by Defendants Marmolejomurillo & Vasquez

Statement of Material Facts by Defendants Marmolejomurillo & Vasquez

Reply to Defendants’ Opposition

Reply to Plaintiff's Opposition

By notice of cross-motion filed on January 4, 2022, under motion sequence number three, plaintiff is seeking an order granting summary judgment in her favor on the issue of liability as against all defendants. The cross-motion papers also serve as opposition to motion by the Ali defendants.

Amended Notice of Cross-Motion

Affirmation in Support/Opposition to the Ali Defendants

Statement of Material Facts

Exhibits 1 to 12

Affirmation in Opposition by the Ali Defendants

Exhibits A to C

Response to Statement of Material Facts by the Ali Defendants

Counterstatement of Material Facts by Plaintiff

Reply

BACKGROUND

On February 11, 2019, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On July 22, 2019, defendants Marmolejomurillo and Vasquez jointly filed an answer with the KCCO. On August 19, 2019, the Ali defendants filed an answer with the KCCO. On June 29, 2021, plaintiff filed a note of issue.

Plaintiff's complaint and deposition testimony establishes the following facts. On October 27, 2018, the plaintiff was seated in the left rear passenger seat of an Uber vehicle operated by defendant Vasquez and owned by defendant Marmolejomurillo. On that date, the vehicle operated by Vasquez, made contact with a vehicle owned by Mohamed Ali and operated by Hussein Ali (hereinafter the subject accident). The subject accident occurred at the intersection of Bradford Street and New Lots Avenue in Brooklyn, New York. The subject accident was allegedly caused by Claudia Vasquez and Hussein Ali's negligent operation of their respective vehicles. The subject accident caused the plaintiff to sustain serious physical injuries.

On April 28, 2022, the parties appeared for oral argument. Following oral argument on the record, the Ali defendants’ motion and the plaintiff's cross-motion are decided as follows for the reasons set for below.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Furthermore, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).

The Ali defendants seek summary judgment dismissing the verified complaint and any cross claims asserted against them on the basis that they did not cause the subject accident. They further contend that Vasquez entered the intersection and collided with their vehicle when Vasquez failed to properly stop and yield before entering the intersection. The Ali defendants further contend that Vasquez was the sole proximate cause of the subject accident. Their motion is supported by, inter alia, the deposition transcripts of the plaintiff, Vasquez, and Mohammed Ali.

The testimony of the plaintiff and the respective drivers establishes that the Vasquez vehicle was controlled by a stop sign just before the intersection and the Ali defendants’ vehicle was not controlled by any traffic control device at the same intersection. A defendant moving for summary judgment in a personal injury action must demonstrate, prima facie, that they did not proximately cause the plaintiff's injuries” (Fargione v Chance, 154 AD3d 713, 714 [2nd Dept 2017]; see Wilson v Mazewski, 175 AD3d 1352, 1353[2nd Dept 2019]). “Since there can be more than one proximate cause of an accident, a defendant seeking summary judgment must establish freedom from comparative fault as a matter of law” (Wilson, 175 AD3d at 1353, citing Cattan v Sutton, 120 AD3d 537, 538 [2nd Dept 2014]; Jones v Vialva—Duke, 106 AD3d 1052, 1053, 966 N.Y.S.2d 187). “[A] driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, to see what there is to be seen through the proper use of his or her senses, and to drive at a speed that is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing” (Fergile v Payne, 202 AD3d 928, 930 [2nd Dept 2022], quoting Pei Ru Guo v Efkarpidis, 185 AD3d 949, 951—952 [2nd Dept 2020]; see Vehicle and Traffic Law §§ 1146[a]; 1180[a]).

Mohammed Ali testified that he noticed the Vasquez motor vehicle in the intersection two or three seconds before the subject accident. His testimony left unresolved which one of the two motor vehicles was in the intersection first. Under these circumstances, the Ali defendants did not eliminate all material issues of fact regarding their alleged lack of comparative fault in causing the subject accident. Therefore, the branch of the motion seeking summary judgment on the issue of liability is denied without regard to the sufficiency of the plaintiff or co-defendants’ opposition papers (see Fergile v Payne, 202 AD3d at 931, citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The Ali defendants also seek dismissal of the plaintiff's complaint on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law 5102(d). 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 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 (Nunez v Alies, 162 AD3d 1058, 1059 [2nd Dept 2018], quoting Grossman v Wright, 268 AD2d 79, 83 [2nd Dept 2000]). With 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 (Grossman, 268 AD2d at 84). The plaintiff in such a situation must present objective evidence of the injury (id.).

In support of this branch of their motion the Ali defendants submitted, among other things, the affirmed report of Dr. Ferriter, an orthopedic surgeon. On October 12, 2020, nearly two years after the subject accident, Dr. Ferriter conducted an independent medical examination of the plaintiff and offered an opinion regarding her claimed injuries, including her lumbar spine. Dr. Ferriter conducted range of motion testing including a siting and supine straight leg raise test of the lumbosacral spine. Dr. Ferriter, however, did not compare the findings to what is normal (see Shirman v Lawal, 69 AD3d 838 [2nd Dept 2010], citing Walker v Public Adm'r of Suffolk County, 60 AD3d 757 [2nd Dept 2007]). Instead, Dr. Ferriter stated that the sitting and supine straight leg raising was “negative with no radiculopathy.”

For the foregoing reasons, the Ali defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).

Inasmuch as the Ali defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Espinal v Shortis, 164 AD3d 1217 [2nd Dept 2018], citing Winegrad, 64 NY2d at 853).

Plaintiff cross moves for an order granting summary judgment in her favor on the issue of liability as against all the defendants. The Ali defendants opposed this relief as untimely but conceded that the plaintiff bore no responsibility for causing the subject accident.

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, a motion for summary judgment must be made no later than 60 days after the filing of the note of issue, unless leave of the court is obtained on good cause shown (see Goldin v. New York and Presbyt. Hosp., 112 AD3d 578, 579 [2nd Dept 2013], citing Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6). In the instant matter, the note of issue was filed on June 29, 2021, and plaintiff's motion was filed on January 4, 2022, over five months late.

A movant seeking leave to make a late summary judgment motion must demonstrate good cause for the delay (see CPLR 3212 [a]; Ade v City of New York, 164 AD3d 1198, 1200-01 [2nd Dept 2018], citing Courtview Owners Corp. v Courtview Holding B.V., 113 AD3d 722, 723 [2nd Dept 2014]). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (Bargil Assoc., LLC v Crites, 173 AD3d 958, 958 [2nd Dept 2019], quoting Bivona v Bob's Discount Furniture of NY, LLC, 90 AD3d 796 [2nd Dept 2011]).

The plaintiff gave no explanation and therefore offered no good cause for the delay. An untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds (Munoz v. Salcedo, 170 AD3d 735 [2nd Dept 2019]). Plaintiff seeks an order granting summary judgment in plaintiff's favor on the issue of liability on the basis that she is free of fault and the defendants’ negligence was the sole proximate cause of the subject accident. The Court finds that plaintiff's motion is a mirror image of the Ali defendants’ motion and may therefore be addressed although untimely.

There is no dispute that the plaintiff was an innocent rear seat passenger in the Vasquez vehicle and that she did nothing to cause the subject accident. She is therefore free of comparative fault. The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (Morris v Dorota, 187 AD3d 1174 [2nd Dept 2020]).However, the plaintiff did not make a prima facie showing of entitlement to summary judgment on the issue of liability as against the defendants. The issue of the liability of each driver in the happening of the subject accident remains a triable issue of fact.

CONCLUSION

The motion by defendants Mohamed Ali and Hussein Ali for an order granting summary judgment in their favor on the issue of liability favor dismissing the verified complaint and all cross claims asserted against them is denied.

The motion by defendants Mohamed Ali and Hussein Ali for an order granting summary judgment in their favor and dismissing the verified complaint on the basis that the plaintiff did not sustain as serious injury as defined in Insurance Law 5102(d) is denied.

The cross motion by the plaintiff Denita Edwards for an order granting summary judgment in her favor finding her free of fault in the happening of the subject accident is granted.

The cross motion by the plaintiff Denita Edwards for an order granting summary judgment in her favor on the issue of liability as against the defendants is denied.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.