The following papers numbered 1 to 20 were read on this motion by the defendant for an order pursuant to CPLR 3212 granting summary on the issue of liability and dismissing the plaintiff's complaint or in the alternative for an order granting defendant summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits- Memo of Law....1 - 8Affirmation in Opposition-Affidavits-Exhibits........9 - 16

Reply Affirmation...................................17 - 20

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This is a personal injury action in which plaintiff, CARMELINA D'ANGELO ("plaintiff"), seeks to recover damages for injuries she sustained as a result of a motor vehicle/pedestrian accident that occurred on March 17, 2010, near the intersection of 19th Avenue and 150th Street, Queens County, New York. At the [*2]time of the accident, plaintiff was a pedestrian who was struck by the motor vehicle owned and operated by SUNG HONG ("defendant"). As a result of the accident the plaintiff allegedly sustained serious physical injuries. Plaintiff commenced this action by the filing of a summons and verified complaint on June 8, 2010.

The defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment on both the issue of liability and threshold and dismissing the plaintiff's complaint. In support of the motion, the defendant submits an affidavit from counsel, Edward J. Harrington, Esq., a copy of the pleadings, a copy of plaintiff's verified bill of particulars and supplemental bill of particulars, copies of the transcripts of the examinations before trial of plaintiff and defendant, and a copy of the affirmed medical report of orthopedic surgeon Dr. Lisa Nason.

In her examination before trial, taken on August 10, 2011, the plaintiff, Carmelina D'Angelo, age 59, a self-employed hairdresser, testified that the accident in question took place on March 17, 2010 at approximately 7:40 pm on 150th Street between 19th Avenue and 20th Avenue in Whitestone, Queens. Plaintiff stated that she was on her way home from dropping papers off at her accountant's office located on the corner of 19th Avenue and 150th Street. Her sister Cathy was going to take the plaintiff home from there and was waiting in a parked car at a bus stop across the street. When she came out of the office the plaintiff crossed 150th Street near the corner of 20th Avenue to get to her sister's car. She did not cross at an intersection and she was not in a crosswalk. She stated that there is a solid white line dividing the traffic going in opposite directions. She crossed the middle white line and was hit by a vehicle coming from her right side. She stated that she looked in both directions before crossing but the lighting conditions were dark and she did not see any cars approaching. When asked if she was 100 per cent certain that a car struck her or was it possible that the car did not strike her but startled her and she fell to the ground she stated "I don't remember to tell you the truth." She stated that she just found herself on the ground striking her left side. She said her head, shoulder, thigh, elbows and side struck the pavement. Her sister came running out of her car and the defendant also stopped his vehicle and got out to see what happened.

The plaintiff testified that she left the scene in an ambulance and was transported to the emergency room at Booth [*3]Memorial Hospital. She told the emergency room doctor that she hit her head, thigh and shoulder. She was treated and discharged the same evening. The following day she went to her primary doctor, Dr. Joanne Lee who referred her to a neurologist. Two days later she was seen by neurologist, Dr. Slavenia Gardella. She testified that she was sent for a CAT scan of her head that was normal. She testified that she sees Dr. Gardella once a month and is treated with anti-inflammatory medication and trigger shots for the pain in her neck. She stated that she went to New York Spine for physical therapy twice a week consistently since the date of the accident. She also stated that she saw chiropractors, Dr. Grosso and Dr. Holland who also treated her for neck and back pain on a weekly basis since the date of the accident. She testified that she also was treated by Dr. Fisher, an orthopedist for pain in her shoulder. Plaintiff also testified that she received treatment from Dr. Guerra at New York Spine for pain management.

Defendant Sung Hong, age 56, a resident of Stamford Connecticut testified on October 24, 2011. He stated that on the date of the accident he was proceeding on 150th Street at a rate of approximately 30 miles per hour. He had three passengers in the vehicle, his wife in the front passenger seat and his son in the rear behind the passenger seat. He stated that he was coming from his home and was on his way to go shopping on Northern Boulevard. He stated that the street was dark in the area of the accident. With respect to the accident he stated "the person suddenly appeared." When he saw her he hit the brake and stopped his vehicle. He was looking straight ahead and stated that he did not look left or right at any point in time. He stated that the pedestrian was moving and came directly in front of his vehicle from the driver's side. She was very close to the vehicle when he first observed her. He said the pedestrian was trying to get to a car across the street and did not pay any attention to his vehicle. As he observed her moving the front of his vehicle was traveling at 30 miles per hour. Although he hit the brake the front of his vehicle came into contact with plaintiff's thigh. He said that when he applied his brake he felt that he just touched her, she fell down in a forward direction and then she got up right away and walked towards her sister's car. He parked his vehicle and went to check on plaintiff's condition. He states that there was no damage to his vehicle.

In her verified bill of particulars, the plaintiff states that as a result of the accident she sustained, inter alia, disc herniations from C2 through C7, L1- L2 and L4-L5 as well as acromion impingement on the supraspiantus muscle of the left shoulder and post traumatic cervical facet arthropathy which [*4]required surgery. She states that as a result of the accident she was not confined to her bed or her home and did not miss any time from her job as a hairdresser.

THRESHOLD - SERIOUS INJURY

Dr. Lisa Nason, an orthopedic surgeon, retained by the defendant, examined plaintiff on April 5, 2012. Plaintiff explained to the doctor that she was struck by a motor vehicle on March 17, 2012 while crossing the street injuring her left shoulder, neck and lower back. She presented to Dr. Nason with pain in her cervical spine, left shoulder and lumbar spine. As part of her physical examination, Dr. Nason performed objective and comparative range of motion testing. She found no limitations of range of motion of the plaintiff's cervical spine, left shoulder and lumbar spine. Dr. Nason concluded, based upon the lack of objective findings, that the plaintiff has no objective evidence of disability or permanent impairment.



Defendant's counsel contends that the medical report of Dr. Nason, as well as the transcript of the plaintiff's examination before trial in which she states she did not miss any time from work as a result of her injuries, are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her 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 opposition to the motion, plaintiff's counsel, Serge Pierre, Esq., submits his own affirmation as well the affidavit frm plaintiff Carmelina D"Angelo dated August 23, 2012. She states that as she crossed 150th Street away from the crosswalk, she was struck on her right thigh by a car driven by defendant who was heading south on 150th Street. She states that she first looked right and did not see any vehicles and then looked right and did not see any vehicles. She then proceeded to cross and was struck and fell on her left side hitting her head, shoulder and left side on the roadway. Subsequently, she was treated for her injuries by her primary care physician Dr. Joanna Lee who gave plaintiff trigger point injections in her left shoulder once per month. Thereafter, she saw Dr. Grosso for physical therapy from April 7, 2010 to June 18, 2010. She ceased treatments when her no fault insurance was terminated. She also received facet [*5]injections to her neck at New Horizon Surgical in New Jersey. She also treated with Drs. Fisher, Gueria and Salvati for pain management.

Plaintiff submits an affidavit from chiropractor, Dr. Richard Grosso, who states that he initially examined plaintiff one month after the accident on April 17, 2010. At that examination the plaintiff had significant limitations of range of motion of the cervical spine and lumbar spine. He stated that after his examination he believed that the plaintiff's injuries were causally related to the accident of March 17, 2010. He stated that the plaintiff received physical therapy treatments in his office until she stopped treating because her no-fault benefits were terminated and she could not afford to pay out of pocket. Additionally, he states that her condition was chronic. DR. Grosso states that on June 27, 2012 he re-examined the plaintiff and found that she still had significant limitations of range of motion of the cervical spine and lumbar spine. He states that in his opinion because of her disc herniations as well as the continuous pain and range of motion limitations, the plaintiff's condition is permanent and significant and will continue to limit her in her ability to carry out her normal activities of daily living.

Radiologist, Dr. Richard Rizzuti performed MRI studies of the plaintiff cervical spine, lumbosacral spine, and left shoulder. In his affirmed reports he states that he found disc herniations from C2- through C7, L1-L2 and L4 - L5. With respect to the left shoulder he did not find any tears but he did find acrominion impingement on the supraspinatus muscle consistent with tendinopathy.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, it is defendant's initial obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v. Eyler, 79 NY2d 955 [1992]; Zuckerman [*6]v. City of New York, 49 NY2d 557[1980]; Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]).

This Court finds that the proof submitted by the defendant, including the affirmed medical report of Dr. Nason and the plaintiff's examination before trial in which she stated that she did not miss any time from work immediately following the accident, were sufficient to meet defendants' prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]).

However, this Court finds that the plaintiff raised triable issues of fact by submitting the affirmed medical reports of Drs. Grosso, Iqbal and Rizzuti, attesting to the fact that after a qualitative and quantitative examinations, the plaintiff had substantiated injuries contemporaneous to the accident and had significant limitations in range of motion at a recent examination, and concluding that the plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident. As such, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khavosov v Castillo, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 AD3d 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091[2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]).

In addition, Dr. Grosso adequately explained the gap in the plaintiff's treatment by stating that her no fault benefits were terminated and plaintiff reached the point of maximum medical improvement such that any further treatments would be palliative (see Abdelaziz v Fazel, 78 AD3d 1086 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010]; Gaviria v Alvardo, 65 AD3d 567 [2d Dept. 2009]; Bonilla v Tortori, 62 AD3d 637 [2d Dept. 2009]).

LIABILITY

With respect to liability, defendant argues, based upon the deposition testimony of the parties, that the plaintiff is solely responsible for the collision with the defendant's vehicle. Counsel states that the testimony shows that the plaintiff, wearing a dark coat, crossed 150th Street outside of a crosswalk in an area that was dark. He claims that the plaintiff only [*7]looked one time to see if cars were coming and then crossed the street while looking straight ahead. Defendant claims that Mr. Hong only saw the plaintiff at the last second coming from his left due to the fact that it was dark and she was wearing dark clothing. Counsel claims that the plaintiff was negligent because she was not paying attention and not looking where she was going. Defendant claims he tried to avoid the accident by stopping his vehicle before coming into contact with the plaintiff but could not do so. In addition, defendant clams that the plaintiff was negligent in that she violated VTL § 1151(b) which states that pedestrians shall not leave the curb and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield; and also violated VTL § 1152(a) which states that pedestrians crossing a roadway at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection, shall yield the right of way to all vehicles within the roadway. Further, NYCRR § 4-04(c)(2) states that no pedestrian shall cross any roadway at an intersection except within a crosswalk.

Therefore, counsel states that as the plaintiff violated the Vehicle and Traffic law by not crossing at a crosswalk and not yielding the right of way to a vehicle already in the roadway and because she crossed in a dark area while looking straight ahead, her actions were the sole proximate cause of the accident. Defendant claims that he was lawfully proceeding on 150th Street and operated his vehicle as a reasonable person under the circumstances and as the defendant has demonstrated his freedom from comparative negligence he is entitled to summary judgment dismissing the complaint.

In opposition, plaintiff's counsel contends that although the defendant asserts that the plaintiff was negligent in crossing the street outside a crosswalk, the defendant did not submit sufficient evidence which established his own freedom from negligence.

Plaintiff's counsel contends that the deposition testimony of the plaintiff and the defendant raise material questions of fact concerning the defendant's own negligence in failing to operate his vehicle to avoid colliding with the plaintiff in violation of VTL 1146(a) which states that every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian upon any roadway and shall give warning. Counsel asserts that as such, the defendant has failed to make a prima facie case in that he has failed to demonstrate his own freedom from negligence as a matter of law. [*8]

Summary judgment on the issue of negligence will be denied where triable issues of fact exist concerning whether defendant was negligent and whether the defendant exercised due care to avoid striking a pedestrian(see Thoma v Ronai, 82 NY2d 736; Sale v Lee, 49 AD3d 854 [2d Dept. 2008]; Cator v Filipe, 47 AD3d 664 [2d Dept. 2008]; D.F. v Wedge Mascot Corp., 43 AD3d 1372 [4th Dept. 2007]).

Here, although the defendant established that the plaintiff failed to cross the street at an intersection or in a crosswalk, defendant failed to establish that plaintiff's actions were the sole proximate cause of the collision. The proponent of a summary judgment motion also has the burden of establishing freedom from comparative negligence as a matter of law (see Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; also see Gardella v Esposito Foods, Inc., 80 AD3d 660 [2d Dept. 2011]; Kim v Acosta, 72 AD3d 648 [2d Dept 2010]). Here, the defendant failed to submit evidence sufficient to demonstrate, as a matter of law, that the he exercised due care to avoid the subject accident or that he was not operating the vehicle in a negligent manner(see Rea v Bono, 95 AD3d 856 [2d Dept. 2012]; Smiley v Johnson, 79 AD3d 850 [2d Dept. 2010]). The defendant-driver had a duty to see that which he should have seen through the proper use of his senses (see Wilson v Rosedom, 82 AD3d 970[2d Dept. 2011]; Topalis v Zwolski, 76 AD3d 524 [2d Dept. 2010];Spicola v Piracci, 2 AD3d 1368 [4th dept. 2003]), and further, a driver with the right of way has a duty to use reasonable care to avoid a collision (see Matamoro v City of New York, 94 AD3d 722 [2d Dept. 2012]). Defendant testified that he did not look left or right prior to the accident, that he was traveling at 30 miles per hour, that he did not see the plaintiff crossing the street in front of his vehicle until immediately before the impact and failed to sound his horn as a warning. As such, defendant failed to meet his burden of establishing, as a matter of law, that defendant could not have seen the plaintiff in time to stop or take evasive maneuvers to avoid contact with the plaintiff(see Bishop v Curry, 83 AD3d 1431 [2d Dept. 2011]).

In addition, there are questions of fact as to whether the defendant contributed to the accident by failing to keep a proper lookout, traveling too fast under the circumstances, and failing to exercise due care in operating his vehicle so as to avoid the accident (see Vehicle and Traffic Law §§ 1146; Topalis v Zwolski, 76 AD3d 524 [2d Dept. 2010][defendant failed to submit evidence sufficient to establish, prima facie, that the decedent's alleged negligence was the sole proximate cause of the accident, that he kept a proper lookout, and that his alleged negligence, if any, [*9]did not contribute to the happening of the accident]).

The cases cited by the defendant in which summary judgment was granted to a defendant where the plaintiff/pedestrians were found to have darted out from between parked cars in front of the defendant's vehicle are inapposite herein as there is no evidence in the record that the plaintiff darted out into the road from between parked vehicles directly into the path of the defendant's vehicle (cf. Rosa v Scheiber, 89 AD3d 827 [2d Dept. 2011]; Ledbetter v Johnson, 27 AD3d 698 [2d Dept. 2006]; Sheppeard v Murci, 306 AD2d 268 [2d Dept. 2003]).

Thus, viewing the evidence submitted in support of the defendant's motion in the light most favorable to the nonmoving party and as the question of comparative negligence is generally a question for the jury (see Jahangi v Logan Bus Co., Inc., 89 AD3d 1064 [2d Dept. 2011]), this Court finds that there is a triable issue of fact as to whether any negligence on the defendant's part contributed to the accident (see Roman v A1 Limousine, Inc., 76 AD3d 552 [2d Dept. 2010]; Eastmond v Wen Po Wong, 300 AD2d 344[2d Dept. 2002]).

Accordingly, the defendant's motion for an order granting summary judgment dismissing plaintiff's complaint is denied.

Dated October 22, 2012

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.