In Albano v. Stein, a rear-end collision case, a Brooklyn trial court denied summary judgment to defendants on the issues of liability, serious injury, and causation.
There, plaintiff Albano’s car was struck from behind by a car owned by Atkins and driven by Stein:
Ms. Albano was either backing or had just backed her vehicle out of an automobile repair garage into the northbound lanes of Coney Island Avenue, between Avenues N and O in Brooklyn, when the Accident occurred. Stein, a manager at a Meineke Muffler shop, was returning from a post-repair test drive in Atkins’s vehicle and was driving north on Coney Island Avenue after having pulled out of a gas station on the southbound side of that street. The circumstances immediately precipitating the collision are contested, but the parties concur that the front of Atkins’s vehicle and the rear of Ms. Albano’s made contact. Stein stated, in an April 30, 2007 deposition, that he stopped Atkins’s vehicle and waited when he saw Ms. Albano backing into the street and at that point Ms. Albano backed her vehicle into him. Ms. Albano, on the other hand, cumulatively testified, at March 4, 2005 and April 30, 2007 depositions, that she checked for traffic on Coney Island Avenue before backing out, that once she backed into the street she stopped her vehicle and changed gears from reverse to drive and that Stein, at this moment, drove into the rear of her vehicle.
Liability
As to liability, the court held:
No basis exists … for finding, as a matter of law, that Ms. Albano violated any VTL sections. VTL §1143 states that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Neither case law nor common sense, however, requires a driver to yield to traffic that cannot be seen until that driver has entered the roadway[.] Ms. Albano’s testimony that she looked for traffic and did not see any before backing into Coney Island Avenue and Stein’s testimony that he had turned out of a gas station on the other side of the avenue immediately before the Accident together present a triable factual issue regarding whether Ms. Albano had any duty or ability to yield to the vehicle Stein was operating. (Emphasis added)
It also found that defendants failed to establish, as a matter of law, that plaintiff was “backing unsafely” under VTL §1211(a) or that she was driving recklessly under VTL §1212. In addition, defendants failed to show that Coney Island Avenue between Avenues N and O was a “controlled-access highway” within the meaning of VTL §1211(b).
Serious Injury
Defendants also failed to show, as a matter of law, that plaintiff did not suffer a “serious injury” within the meaning of Article 51 of the New York Insurance Law, namely, Insurance Law § 5102(d).
Defendants presented evidence that their orthopedist (Dr. Crane)
assessed some of Ms. Albano’s ranges of motion at levels within the respective “average normal ranges of motion” accompanying his affirmation. Dr. Crane stated, however, regarding Ms. Albano’s lumbosacral flexion: “As she stood erect, with her knees fully extended, I asked her to bend forward at her waist as far as she could. She flexed to 45º and said she couldn’t bend any further. I asked her why and she said, ‘Pulling,’ pointing to her lower lumbar region. “This was not consistent. A few moments later she sat up on the exam table with her torso erect, and with her thighs and calves flat on the mattress. She sat comfortably in that position for about a minute. At that point I asked her if she had any pain or discomfort and she said she didn’t. This showed that, in fact, she had painless lumbosacral flexion to 90º.”
The court held that Dr. Crane’s assessment “precisely mirror the facts” in the Court of Appeals’ 2011 Perl v. Meher decision, and that therefore, his “affirmation therefore presents a credibility issue, or at least a factual question concerning which measure of lumbosacral flexion warrants consideration.”
The court also noted that “Dr. Crane’s measurement of plaintiff’s hip flexion falls short of his own specified average normal range, and thus seemingly bolsters Ms. Albano’s claims of physical limitations resulting from the Accident.”
Defendants therefore failed to make a prima facie showing that plaintiff suffered no serious injury. Since they failed to meet their initial summary judgment burden, the court found it unnecessary to review the sufficiency of plaintiff’s opposition papers.
Basic Economic Loss
Plaintiffs, however, specified “no amount of loss, introduce no evidence whatsoever of expenses incurred and make no arguments against dismissing the claim for greater than basic economic loss.” Defendants were therefore entitled to summary judgment on plaintiffs’ first cause of action, to the extent that it seeks damages for economic loss greater than basic economic loss.
Causation
Finally, the court denied defendants summary judgment as to the issue of causation. The court explained the causation requirement:
Parties’ experts must opine about the causal relationship between the accident in question and the alleged serious injury to establish a prima facie case supporting summary judgment or to raise a question of fact opposing summary judgment. If a defendant’s expert on a summary judgment motion produces persuasive evidence that the plaintiff’s injuries were caused by something other than the accident in question, then the plaintiff must produce contradictory evidence to raise a triable factual issue.
A plaintiff’s expert’s evidence linking the accident in question to the alleged serious injury does not have to be “powerful” to raise a question of fact, nor must the expert directly refute the alternate potential causes advanced by defense experts. The Appellate Division, First Department, has held, since the Court of Appeal’s 2011 decision in Perl, that a plaintiff’s expert affirmation can raise a causation question even if it does not explicitly rebut a defense expert’s opinion that an injury was caused solely by degenerative changes.
although defendants’ doctors said that plaintiff’s injuries were not caused by the accident, plaintiffs raised a factual issue as to that issue:
Here, Dr. Bonomo [defendants’ neurologist] and Dr. Crane [defendants’ orthopedist] assert that Ms. Albano’s injuries were not produced by the accident, but resulted from an unrelated degenerative condition. Dr. Wilen [plaintiff’s orthopedist], on the other hand, opines that Ms. Albano’s injuries stem from the Accident. Defendants thus make a prima facie showing that the Accident did not cause Ms. Albano’s injuries, but Dr. Wilen’s affidavit raises a factual question concerning causation.
Finally, “a plaintiff, to prove causation, must introduce some medical evidence of the injury contemporaneous with the underlying accident, though not necessarily as a quantified range-of-motion assessment.”
Defendants failed to meet their burden on this issue:
Defendants’ argument that plaintiffs do not properly produce assessments of Ms. Albano’s injuries that are sufficiently contemporaneous to the accident lacks merit. Dr. Wilen presents reports of two other doctors from July 26 and 27, 2001, as well as results of an MRI performed on August 29, 2001, to show injury assessments contemporaneous to the July 24, 2001 Accident. This medical evidence qualifies as sufficiently contemporaneous to evince a causal relationship between the Accident and Ms. Albano’s injuries.
The court therefore denied defendants’ summary judgment motion on this ground.