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Seabury v Heiser 2007 NY Slip Op 30366(U) March 14, 2007 Supreme Court, Suffolk County Docket Number: 0013434 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order

SUPREME COURT - STATE OF NEW YORK
I.A.S. PART 7 SUFFOLK COUNTY
I'RE sEN'I' :
WILLIAM B. REBOLINI Justice

lio sal 1 I1d se d bur y ,

Plaintiff( s) -againstMichasl Heiser, Artheree Dominic and Michael Do in i I I i c , Defendant(s)
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Motion dab; Submitted: 1/24/07 Motion Secluence No.: 001 MG 002 MD 003 MD 004 MD Index No.: 13434-05 Attorney for Plaintiff: Law Office of Lawrence A. Altholtz 304 Park Avenue South, 11"' Floor New York. NY 10010 Attornev for Defendant Michael Heiser: DeSena & Sweeney, LLI' 1383-32 Veterans Memorial Highway Hauppauge, NY 1 1788 Attornev fix Defendants Artheree Dominic and Michael Dominic: Law Office of John P. Humphreys 3 Huntingion Quandrangle, Suite 102s P 0 Box 9028 Melville, NY 11747

L l p o i i the following papers numbering 1 to 16 read upon these four motions:

Notice o f Motion and supporting papers 1 - 4; Notice of Cross Motion and supporting papers 5 - 7, 8 - 10, 11 - 12; Aftida.,,it in Opposition and supporting papers 13 - 14; Jieply 4 f t i d ~ v i t s supporting papers 15 - 16; it is and

ORDERED that this motion (001) by defendants, Artheree Dominic and h4ichael Dominic foi a i l order pursuant to CPLR 3212 granting summary judgment dismissing the plainti A s complaint on the ground that, as a matter of law, the accident was caused by co-1-

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ciefendai-t Michael Heiser is granted; and it is further

C)KDE:RED that this cross motion (002) by plaintiff, Rosalind Seabury ("plaintiff ') for a n order pursuant to CPLR 3212 granting summary judgment in favor of plaintiff on the issue of liability .igainst Michael Heiser is granted; and it is further
ORDERED that this cross motion (003) by defendant, Michael Heiser for an order pursuant t o CIPLR 32 12 granting summary judgment dismissing the plaintiffs complaint on the ground that plaintiff failed to establish that her alleged injuries were caused by the subject accident and liirther that the alleged injuries do not fall within the definition of "serious injury" ;IS defincd by the Insurance Law is denied; and it is further ORDERED that this cross motion (004) by defendants, Artheree Dominic and Michael '3ominic tbr an order pursuant to CPLR 3212 granting summary judgrnent dismissing the plaintiff's coinplaint on the ground that plaintiffs alleged injuries do not fall within the ~;lelin~tictn of"serious injury" as defined by the Insurance Law is denied as moot.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff when the Doniinic vehicle, in which plaintiff was a passenger, was hit in the rear by the vehicle Dominic, the driver driven by defendant, Michael Heiser. At the time of the accident, Art~heree of tlie vehicle was either stopped or stopping prior to making a turn.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle, and imposes a duty on the operator of the niovin;: vehicle to come forward with an adequate non-negligent explanation for the accident" ( & n i l Norsic & Son. Inc. v L. &P Transp., Inc., 30 AD3d 368, 815 NYS2d 736 [2d Dept. 21_)06])Artheree Dominic has established prima facie her entitlement to summary judgment by submitting the transcript of her deposition indicating the accident occurred when she was stopped prior to making a left turn off of Motor Parkway.

I n opposition to this motion, defendant Heiser fails to raise a triable issue offact. Counsels's speculation that Artheree Dominic, the driver of the preceding vehicle, may have been able to avoid the accident or take some evasive action ignores the applicable case law that requires her client to come forward with a non-negligent explanation for this rear end accident. Moreo~er, position that the Dominic vehicle was moving at the time of the accident is his irrelevant, since the same presumption of negligence against the second vehicle arises whether the precedin~ vehicle is stopped or stopping (see Emil Norsic & Son, Inc. v L. &P `I`ransp., Inc. sup sa).
Mol-<:over,plaintiffs claim that the Dominic defendants should remain in this case because there I S a question of fact as to whether Artheree Dominic used her directional signal is insufficient i o raise a triable issue of a fact as to any negligence on Dominic's part. Contrary to

plaintiffs counsel's contention, plaintiff did not testify on page 58 of the transcript that the Dominic vehicle did not have its directional signal on. Rather plaintLff answered in the negative -2-

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to counsel's question if she heard "the sounds of any directional signal noises." She was not asked wnether the directional signal was activated. In any event, since Heiser testified that he did not x e the brake lights on the Dominic vehicle until one or two seconds prior to impact, the h c t that he testified that he did not see a directional on that vehicle does not raise a triable issue of ISSLICoffact. "When a driver of an automobile approaches another automobile from the rear, lie or she I S bound to maintain a reasonably safe rate of speed and control over his or her vehicle, a n d to e uercise reasonable care to avoid colliding with the other vehicle. In addition, Vehicle ;ind Traj'tic LJW 3 I 129(a) requires a driver to maintain a safe distance between vehicles: "The driver o j_ ;i motor vehicle shall not follow another vehicle more closely than is reasonable and prudent. having due regard for the speed of such vehicles and the traffic upon and the condition of the highway". Moreover, "drivers have a `duty to see what should be seen and to exercise ~-casonal)le care under the circumstances to avoid an accident' " (Filippazzo v. Santiago, 277 4D2d 4 19, 7 16 NYS2d 710 [2d Dept. 20001 [citations omitted]). Thus, plaintiff has failed to -aise a question offact that the alleged failure of Artheree Dominic to use her directional signal was the proximate cause of the accident. Ilefendant, Michael Heiser moves to dismiss plaintiffs comp1,ainton the ground that pla~ntiff'h Injuries were not caused by the subject accident and further that the injuries she did jLlstatl1 do 1101 fall within the definition of "serious injury" under the Insurance Law. This niotioii LSjoiricd by co-defendants, who cross move for the same relieE
`I`hc evidence submitted by defendant Heiser in support of his motion does not establish prima facie that plaintiff did not suffer a serious injury within the meaning of Insurance Law $5 102(tl) as t esult of the motor vehicle accident. More specifically, the submissions provided by dcfendant indicate fxtual questions as to whether, inter alia, the torn tendon in plaintiffs right

shoulder was caused by the accident. While the affirmation of Arthur M. Bernhang, M.D. F.A.C.5. who performed the independent orthopaedic examination stades that the arthritic changes i n plaintiffs shoulder could not have been caused by the accident, he is silent as to the suspected caiise of the tear. Beatrice Engstrand, M.D., F.A.A.N., the examining neurologist perforired several tests, noted certain decreases in range of motion, does not comment on the MRI report indicating a tendon tear, and opines that plaintiff has no disability from this accident. I n thc aftlnmtion of Melissa Sapan Cohn, the defendant's examining radiologist, Dr. Cohn opincs that tlie tendon tear is degenerative. However, also annexed to the defendant's motion is ;I letter from plaintiffs physician indicating that based on the presence of effusion, the tear was recent and not chronic. Accordingly, the court finds that defendant has failed to meet his prima 2007 WL facie burdens (see Kovalenko v. General Electric Capital Auto Lease, ___ AD2d--, 534383 [2d Dept. 20071) and the court need not consider the sufficiency of plaintiff`s opposition papers.

Dated: March 14, 2007

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