| Reitz v Seagate Trucking, Inc. |
| 2010 NY Slip Op 02532 [71 AD3d 975] |
| March 23, 2010 |
| Appellate Division, Second Department |
| William Reitz, Plaintiff/Counterclaim Defendant-Respondent, andLois Reitz, Respondent, v Seagate Trucking, Inc., et al., Defendants/CounterclaimPlaintiffs-Appellants. |
—[*1] Schwartzapfel Truhowsky Marcus, P.C. (Alexander J. Wulwick, New York, N.Y., ofcounsel), for plaintiff/counterclaim defendant-respondent and plaintiff-respondent. Richard T. Lau & Associates, Jericho, N.Y. (Keith E. Ford of counsel), forplaintiff/counterclaim defendant-respondent on the counterclaim.
In an action to recover damages for personal injuries, the defendants/counterclaim plaintiffsappeal (1), as limited by their brief, from so much of an order of the Supreme Court, SuffolkCounty (Tanenbaum, J.), dated August 4, 2008, as granted the plaintiffs' motion for summaryjudgment on the issue of liability and granted the plaintiff/counterclaim defendant's motion forsummary judgment dismissing the counterclaim, and (2) from an order of the same court datedDecember 4, 2008, which denied their cross motion for summary judgment dismissing thecomplaint insofar as asserted by the plaintiff Lois Reitz on the ground that she did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order dated August 4, 2008, is reversed insofar as appealed from, on thelaw, without costs or disbursements, the plaintiffs' motion for summary judgment on the issue ofliability and the plaintiff/counterclaim defendant's motion for summary judgment dismissing thecounterclaim are denied; and it is further,
Ordered that the order dated December 4, 2008, is affirmed, without costs or disbursements.
On the morning of August 27, 2006, the plaintiff Lois Reitz was a passenger in a vehicleoperated by the plaintiff/counterclaim defendant, William Reitz, when it was struck from behindby a vehicle owned by the defendant Seagate Trucking, Inc., and operated by the defendant IzzetCebeci.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence against the operator of the rear vehicle, thereby requiring that operator to rebut theinference of negligence by providing a nonnegligent explanation for the collision" (Klopchinv Masri, 45 AD3d 737, 737 [2007]; see Harrington v Kern, 52 AD3d 473 [2008];Rainford v Sung S. Han, 18 AD3d 638 [2005]). Here, in support of their motion forsummary judgment on the issue of liability, the plaintiffs established their prima facieentitlement to judgment as a matter of law on the issue of liablity against the defendants bysubmitting [*2]evidence showing that their vehicle had beenstopped for approximately one minute when the defendants' vehicle rear-ended their vehicle. Inopposition, however, the defendants rebutted the inference of negligence by adducing evidencethat the plaintiffs' vehicle suddenly changed lanes directly in front of their vehicle, forcing thedefendant Cebeci to stop suddenly (see Delayhaye v Caledonia Limo & Car Serv., Inc.,49 AD3d 588 [2008]; Morrison v Montzoutsos, 40 AD3d 717 [2007]; Brodie vGlobal Asset Recovery, Inc., 12 AD3d 390 [2004]). Accordingly, the Supreme Court shouldhave denied the plaintiffs' motion for summary judgment on the issue of liability and theplaintiff/counterclaim defendant's motion for summary judgment dismissing the counterclaim.
In support of their cross motion for summary judgment dismissing the complaint insofar asasserted by the plaintiff Lois Reitz on the ground that she did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d), the defendants failed to meet their prima facieburden of establishing that she did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A CarSys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thedefendants submitted, inter alia, an affirmed medical report of Dr. Edward A. Toriello, anorthopedist, who examined Lois Reitz on March 25, 2008, and found range-of-motionrestrictions in her lumbosacral spine. Similarly, the affirmed medical report of Dr. Mark J.Zuckerman, the defendants' neurologist, found a restriction in Lois Reitz's lumbar spine andstated that she suffers from myofascial pain syndrome as a result of the subject accident.Although both physicians opined that any restrictions were subjective and resulted frompreexisting degenerative changes noted in a December 2006 magnetic resonance imaging scanand not the subject accident, they failed to explain or substantiate, with objective medicalevidence, the basis for their conclusions (see Hi Ock Park-Lee v Voleriaperia, 67 AD3d734 [2009]; Moriera v Durango, 65 AD3d 1024 [2009]; Busljeta v PlandomeLeasing, Inc., 57 AD3d 469 [2008]). Accordingly, we need not consider the sufficiency ofthe papers submitted by the plaintiffs in opposition to the cross motion (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Mastro, J.P., Fisher, Belen and Austin,JJ., concur.