The underlying action was commenced by the plaintiffs as a result of a motor vehicle accident, which occurred on November 29th, 2008, at or near the intersection of Page Road and Marlboro Road in Valley Stream, New York. The subject intersection is controlled by stop sign for those vehicles traveling on Marlboro Road.
A Lawyer said that, as recited in the relevant deposition transcript, the Police Officer testified on the day of the accident she was operating police vehicle number 523 and was traveling approximately 30 miles per hour southbound on Marlboro Road responding to an emergency call she received in connection to an unconscious person in need of medical assistance. Upon receipt of this call, the Officer activated the emergency lights, which remained illuminated continuously, as well as the siren, which she operated intermittently “every half second” until the time of the car accident. Upon approaching the subject intersection, the Officer began to slow the police vehicle down when she observed the automobile operated by the plaintiff traveling eastbound of Page Road. After observing the plaintiff’s vehicle, the Officer continued to sound the siren and attempted to stop the police cruiser but was unable to do so and collided with the plaintiff. The Officer testified that at the time of impact, the speed of the police cruiser was between “five to ten” miles per hour.
A source said that, the plaintiff claims that as a consequence of the subject accident, she has sustained serious injury as defined in Insurance Law. Plaintiff, while not alleging a claim of serious injury, has asserted a derivative claim for loss of consortium. The applications respectively interposed by the moving parties thereafter ensued and are determined as set forth hereinafter. The Court initially addresses that branch of the defendants’ application which seeks an order dismissing the underlying complaint on the basis that the plaintiff has failed to demonstrate the County acted with reckless disregard to the safety of others. In support thereof, counsel argues that at the time of the accident the police cruiser was an authorized vehicle responding to an emergency situation and was operated by the Officer in a non-reckless manner thus warranting the relief herein requested.
A source said that, defendants move pursuant to CPLR §3212, for an order granting summary judgment dismissing the within complaint on the following bases: the plaintiffs have failed to demonstrate that the County acted with reckless disregard, and; that plaintiff has failed to establish she has sustained a serious injury as contemplated by Insurance Law §5102[d].
A Lawyer said that, the plaintiffs oppose this branch of the defendants’ application and simultaneously cross move for various forms of relief. In opposing the instant application, plaintiffs’ counsel posits that there is material questions of fact as to the relative speeds of the vehicles respectively operated by plaintiff and the Officer, as well as with respect to whether the Officer adequately sounded the siren upon approaching the subject intersection.
The issues in this case are whether plaintiffs have failed to demonstrate that the County acted with reckless disregard and; that plaintiff has failed to establish she has sustained a serious injury as contemplated by Insurance Law.
It is well settled that a motion for summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering admissible proof which is sufficient to warrant the Court to direct judgment in the movant’s favor. Such evidence may include deposition transcripts as well as other proof annexed to an attorney’s affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve factual issues but rather to determine if any such material issues of fact exist.
Of particular relevance herein, Vehicle and Traffic Law §1104, bestows upon “the driver of an authorized emergency vehicle” a qualified privilege to disregard established traffic rules when responding to an emergency situation. Such privilege extends to permitting an emergency vehicle to “proceed past a steady red signal, flashing red signal or stop sign, but only after slowing down as may be necessary for safe operation”. The privilege provided by the statute is expressly limited by VTL§1104[e], which provides “the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others”. The standard of reckless disregard “requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow”.
The Court has carefully reviewed the record and finds that the submissions proffered by the defendants fail to eliminate material issues of fact as to the speed at which the police vehicle was being operated as it entered the intersection, as well as with respect to how frequently the siren was sounded prior to impact. In the instant matter, and as noted above, the Officer testified she operated the siren intermittently every half second and that she slowed the police vehicle prior to entering the subject intersection. However, said assertions are plainly contradicted by the statements provided to the police by the non-party witnesses copies of which are included in the defendants’ motion papers. A review thereof indicates that one witness stated he “saw a marked police car number 523 driving southbound on Marlboro road pass him with its lights on doing about 40-50 mph.” He additionally stated that as “the police car approached the intersection at Page road he heard the Police Siren for about a second and then saw a collision.” As to the other witness he stated he observed the police vehicle “travelling south bound on Marlboro road going fast” and that “as the police car approached the intersection of Page road he heard the siren for about 1 second and then he saw the police car collide with the plaintiff’s vehicle.
Thus, given the foregoing, this Court finds that the defendants have failed to establish their prima facie burden. Accordingly, this Court need not consider the sufficiency of the plaintiffs’ opposition papers.
The Court now addresses that branch of the defendants’ application which seeks dismissal of the underlying complaint on the basis that plaintiff did not sustain a serious injury.
In support thereof, the defendants provide the following-the affirmed report of independent radiologic reviews authored by the physician in connection to various MRIs and X-rays taken of the plaintiff’s cervical, lumbar and thoracic spine injury; an unsworn operative report of the physician, who preformed a pre-accident discectomy at L5-S1, and; an unsworn pre-accident MRI report.
The doctor conducted an orthopedic examination which included range of motion testing as to the plaintiff’s neck, which was obtained by way of visual observation. Such testing revealed restrictions as to flexion [45 degrees observed, 60 degrees is normal], extension [5 degrees observed 15 degrees is normal], and lateral bending and rotation [45 degrees observed, 60 degrees is normal]. The doctor opined that the plaintiff “has a diagnosis of underlying and pre-existing osteoarthritis in the neck and back and it is my opinion this may have been exacerbated in this motor vehicle accident”.
This branch of the defendants’ application is opposed by the plaintiffs’ who also cross-move for an order granting summary judgment as to the issue of serious injury. In both opposing the application and in support of the cross-motion, counsel for the plaintiff submits the following medical evidence: the affidavit of the affirmed medical reports from his doctors.
Where, as here, the defendants have interposed a threshold motion seeking dismissal of a personal injury complaint, the movant bears the specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Insurance Law §5102[d]. Upon such a showing, it becomes incumbent upon the plaintiff to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury”. Within the scope of the defendants” burden, the medical experts must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to the plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.
Having carefully reviewed the numerous medical reports submitted herein, the Court finds that none of the moving parties herein have demonstrated entitlement to summary judgment. Initially, and with respect to the moving defendants, the Court finds they have failed to demonstrate that the plaintiff did not sustain a “serious injury”. Here, in addition to opining that the subject accident may have exacerbated a pre-existing condition’ the defendants medical expert clearly observed limitations in the plaintiff’s neck as to flexion extension and lateral rotation.
Based upon the foregoing, the court held that the branch of the defendants’ application seeking summary judgment dismissing the within complaint on the basis that the plaintiff failed to sustain a serious injury is denied and the plaintiffs’ cross-motion for an order granting summary judgment in their favor as to the issue of serious injury is denied.
The Vehicle and Traffic Law §1104, bestows upon “the driver of an authorized emergency vehicle” a qualified privilege to disregard established traffic rules when responding to an emergency situation. If the injury sustained is in relation this law, then ask for the help of a New York Personal Injury Attorney and New York Spinal Injury Attorney in order to defend your case. Call us at Stephen BIlkis and Associates.