| Gutierrez v Trillium USA, LLC |
| 2013 NY Slip Op 07450 [111 AD3d 669] |
| November 13, 2013 |
| Appellate Division, Second Department |
| Hugo I. Gutierrez, Respondent, v Trillium USA,LLC, et al., Appellants. |
—[*1] Law Offices of Neil Kalra, P.C., Forest Hills, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Lewis, J.), dated August 17, 2012, as granted that branch of the plaintiff's motion whichwas, upon renewal, for summary judgment on the issue of liability and denied thosebranches of their cross motion which were to compel the plaintiff to provideauthorizations for the release of his medical and employment records for the five-yearperiod prior to the happening of the subject accident.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof denying that branch of the defendants' cross motion whichwas to compel the plaintiff to provide authorizations for the release of his medicalrecords for the five-year period prior to the happening of the subject accident, andsubstituting therefor a provision granting that branch of the defendants' cross motion tothe extent of directing that the plaintiff provide authorizations for the release of hismedical records pertaining to the treatment of his knees, neck, back, and left shoulder forthe five-year period prior to the happening of the subject accident, and otherwise denyingthat branch of the cross motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
On Friday, June 25, 2010, during evening rush hour, while traveling on thesouthbound Van Wyck Expressway, near the exit for Atlantic Avenue, the plaintiff'svehicle was struck in the rear by a vehicle owned by the defendant Trillium USA, LLC,and operated by the defendant Giovanni Hernandez. The weather was clear and the roadswere dry.
The plaintiff commenced this action to recover damages for personal injuries againstthe defendants. Prior to depositions being conducted, the plaintiff moved for summaryjudgment on the issue of liability. In an order dated June 10, 2011, the Supreme Courtdenied, as premature, the plaintiff's motion for summary judgment on the issue ofliability, with leave to renew upon completion of discovery.
After depositions had been conducted, the plaintiff, inter alia, renewed his motion forsummary judgment on the issue of liability, contending that Hernandez failed to maintaina safe distance between the vehicle he was operating and the plaintiff's vehicle. Inopposition, the [*2]defendants argued that the plaintiff'ssudden stop caused the accident and that, consequently, a triable issue of fact existed asto the plaintiff's comparative fault. The defendants also cross-moved, inter alia, tocompel the plaintiff to provide authorizations for the release of the plaintiff's medical andemployment records for the five-year period prior to the happening of the accident.
The Supreme Court, inter alia, granted that branch of the plaintiff's motion whichwas, upon renewal, for summary judgment on the issue of liability, and denied thosebranches of the defendants' cross motion which were to compel the plaintiff to provideauthorizations for the release of his medical and employment records for the five-yearperiod prior to the happening of the accident.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on thatoperator to rebut the inference of negligence by providing a nonnegligent explanation forthe collision" (Pollard vIndependent Beauty & Barber Supply Co., 94 AD3d 845, 845-846 [2012]; see Tutrani v County ofSuffolk, 10 NY3d 906, 908 [2008]; Delvalle v Mercedes Benz USA, LLC, 94 AD3d 942[2012]; Perez v Roberts, 91AD3d 620, 621 [2012]; Ramos v TC Paratransit, 96 AD3d 924, 925 [2012]; Giangrasso v Callahan, 87AD3d 521, 522 [2011]; Scheker v Brown, 85 AD3d 1007, 1007 [2011]). Aconclusory assertion by the operator of the following vehicle that the sudden stop of thevehicle caused the accident is insufficient, in and of itself, to provide a nonnegligentexplanation (see Kastritsios vMarcello, 84 AD3d 1174 [2011]; Celentano v Moriarty, 75 AD3d 572 [2010]; Franco v Breceus, 70 AD3d767 [2010]; Mallen vSu, 67 AD3d 974, 975 [2009]; Ramirez v Konstanzer, 61 AD3d 837 [2009]; Jumandeo v Franks, 56 AD3d614 [2008]; Arias vRosario, 52 AD3d 551, 552-553 [2008]; Lundy v Llatin, 51 AD3d 877 [2008]). The issue ofcomparative fault will be left for a jury to determine only where there is a triable issue offact as to whether the frontmost driver also operated his or her vehicle in a negligentmanner (see Gaeta v Carter,6 AD3d 576, 577 [2004]). However, " '[v]ehicle stops which are foreseeable underthe prevailing traffic conditions, even if sudden and frequent, must be anticipated by thedriver who follows, since he or she is under a duty to maintain a safe distance betweenhis or her car and the car ahead' " (Volpe v Limoncelli, 74 AD3d 795, 795-796 [2010],quoting Shamah v Richmond County Ambulance Serv., 279 AD2d 564, 565[2001]; see Staton v Ilic, 69AD3d 606 [2010]; Lampkin v Chan, 68 AD3d 727 [2009]; Hakakian v McCabe, 38 AD3d493 [2007]).
Here, the plaintiff submitted his affidavit and transcripts of his and Hernandez'sdeposition testimony, which demonstrated that the plaintiff's vehicle was struck in therear by the defendants' vehicle while the plaintiff was traveling in the middle lane of thesouthbound Van Wyck Expressway. These submissions established the plaintiff's primafacie entitlement to judgment as a matter of law on the issue of liability (see Robayo v Aghaabdul, 109AD3d 892 [2013]; Jumandeo v Franks, 56 AD3d at 614; Lundy vLlatin, 51 AD3d at 877; Ahmad v Grimaldi, 40 AD3d 786, 787 [2007]).
In opposition to the plaintiff's prima facie showing, the defendants failed to raise atriable issue of fact as to whether the plaintiff's negligence contributed to the accident.Hernandez testified at his deposition that he was less than one car length behind theplaintiff's vehicle, traveling no more than 30 miles per hour, as they both traveled in thesame lane of the southbound Van Wyck Expressway during weekday evening rush hourtraffic. He also testified that he could not see in front of the plaintiff's vehicle. Underthese circumstances, the defendants' contention that the plaintiff's vehicle came to asudden stop was insufficient to raise a triable issue of fact as to whether there was anonnegligent explanation for the accident (see Jumandeo v Franks, 56 AD3d at615; Lundy v Llatin, 51 AD3d at 877-878; Ahmad v Grimaldi, 40 AD3dat 787). Accordingly, the Supreme Court properly granted that branch of the plaintiff'smotion which was, upon renewal, for summary judgment on the issue of liability.
The Supreme Court improvidently exercised its discretion in denying that branch ofthe defendants' cross motion which was to compel the plaintiff to provide authorizationsfor the release of his medical records for the five-year period pre-dating the accidentinsofar as the defendants sought the release of medical records pertaining to priortreatment of the plaintiff's knees, neck, back, and left shoulder during that period of time."There shall be full disclosure of all matter material and necessary in the prosecution ordefense of an action" (CPLR 3101 [a]). While physician-patient communications areprivileged under CPLR 4504, "[a] litigant will be deemed to have [*3]waived the privilege when, in bringing or defending apersonal injury action, that person has affirmatively placed his or her mental or physicalcondition in issue" (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; see Farkas v Orange RegionalMed. Ctr., 97 AD3d 720, 721 [2012]). Further, "a party must provide dulyexecuted and acknowledged written authorizations for the release of pertinent medicalrecords under the liberal discovery provisions of the CPLR (see CPLR 3121,subd [a]) when that party has waived the physician-patient privilege by affirmativelyputting his or her physical or mental condition in issue" (Cynthia B. v New RochelleHosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]; see Diamond v Ross Orthopedic Group, P.C., 41 AD3d768 [2007]).
Here, the defendants' request for authorizations for the release of the plaintiff'smedical records for the five-year period prior to the accident sought information that wasmaterial and necessary to the defense of the action, given the plaintiff's allegations in hisbill of particulars and first supplemental bill of particulars, in effect, that the accidentexacerbated or accelerated previously existing injuries to the plaintiff's knees, neck, back,and left shoulder (see Colwin vKatz, 102 AD3d 449, 449 [2013]; McGlone v Port Auth. of N.Y. & N.J., 90 AD3d 479, 480[2011]).
The Supreme Court providently exercised its discretion in denying that branch of thedefendants' cross motion which sought additional authorizations for the release of theplaintiff's employment records. "A party is not entitled to unlimited, uncontrolled,unfettered disclosure" (Geffnerv Mercy Med. Ctr., 83 AD3d 998, 998 [2011]). The plaintiff has alreadyprovided the defendants with an authorization for the release of his employment recordsfrom January 1, 2008, through August 2011. The defendants failed to demonstrate howthe plaintiff's employment records from June 2005 through December 2007 were eithermaterial or necessary to the defense of this action. Angiolillo, J.P., Dickerson, Austin andHinds-Radix, JJ., concur.