Altavilla v West
Supreme Court of New York, New York County
December 17, 2018, Decided
152424/2016

Reporter
2018 N.Y. Misc. LEXIS 6265 *; 2018 NY Slip Op 33241(U) **

[**1] AMANDA ALTAVILLA, Plaintiff, -v- PERRY WEST, VENTI TRANSPORTATION INC., Defendant. INDEX NO. 152424/2016
Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

DECISION AND ORDER
Upon the foregoing documents, it is ORDERED that after consideration of plaintiff’s motion to reargue the Decision of this Court dated September 5, 2018, the Court grants the motion to reargue and it is ORDERED that defendants’ motion for summary judgment to dismiss plaintiff’s complaint is denied and plaintiff’s Cross-Motion for summary judgment on the issue of liability is granted.
The present action stems from a motor vehicle accident which occurred on April 21, 2014 on Route 222 in Maidencreek Township, Pennsylvania. Since, plaintiff was domiciled in New Jersey, defendants were domiciled in New York and the subject accident occurred in Pennsylvania, a choice of law analysis was necessary. In its September 5, 2018 Decision, the Court used the choice of law analysis set forth in Neumeier v Kuehner, 31 NY2d 121, 128, 286 N.E.2d 454, 335 N.Y.S.2d 64 [1972], in which the Court of Appeals addressed motor vehicle cases involving conflicts of [**2] choice of law between New York and foreign states and delineated the three following principles:
1. When the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard [*2] of care which the host owes to his guest.
‘2. When the driver’s conduct occurred in the state of his domicile and that state does not cast him in liability for that conduct, he should not be held liable by reason of the fact that liability would be imposed upon him under the tort law of the state of the victim’s domicile. Conversely, when the guest was injured in the state of his own domicile and its law permits recovery, the driver who has come into that state should not—in the absence of special circumstances—be permitted to interpose the law of his state as a defense.
‘3. In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Cf. Restatement, 2d, Conflict of Laws, P.O.D., pt. II, ss 146, 159 (later adopted and promulgated May 23, 1969).)’
The Court found that the third principle is [*3] applicable to plaintiff’s case stating that: “Plaintiff and defendants are domiciled in different states and thus the law of Pennsylvania, where the accident occurred, should govern unless it can be shown that ‘displacing the applicable [New York] rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants'” (id.)
Upon reargument, plaintiff notes that the Court misapplied the law. Plaintiff correctly states that the Court erred in finding that New York is the normally applicable rule of law. The third Neumeier Rule established that the normally applicable rule of law is that of the state where the accident occurred, not where the case was brought. Thus, the applicable rule is Pennsylvania law. However, the Court finds that under the third principle of the Neumeier analysis, the outcome of the case remains the same in that New York law should be applied to the present action.
[**3] Displacing Pennsylvania law with that of New York law would advance relevant substantive law purposes for cases brought in New York. Allowing for the use of Pennsylvania law runs contrary to the Legislature’s [*4] intent for enacting New York’s no-fault insurance law. One of the law’s purposes was to “establish a quick, sure and efficient system for obtaining compensation for economic loss suffered” (Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214, 666 N.E.2d 1046, 644 N.Y.S.2d 133 [1996]). In order to prevent the overcompensation for lesser injuries and under compensation for those with more serious injuries, the Legislature enacted the No-Fault law to demarcate “rules easily and readily applied to avoid the expenditure of time and money in investigation and determination on which side of the line each particular claim would fall” (Montgomery v Daniels, 38 N.Y.2d 41, 70, 340 N.E.2d 444, 378 N.Y.S.2d 1 [1975]).
The application of Pennsylvania law makes ambiguous to New York litigants who affirmatively choose to commence an action in the State of New York, whether they will benefit from New York threshold law or be held to that of a foreign state. The use of Pennsylvania law would be contrary to the Legislature’s intent and would unnecessarily expend time and money in order to make a determination on which side of the line plaintiff’s claim would fall under.
As New York No-Fault law applies to the case at bar, defendants’ motion to dismiss must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate [*5] any material issues of fact from the case” (Winegrad v New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure … to do [so]” (Zuckerman v City of New York, 49 NY2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]).
[**4] In order to satisfy their burden under Insurance Law § 5102(d), a plaintiff must meet the “serious injury” threshold (Toure v Avis Rent a Car Systems, Inc., 98 NY2d 345, 352, 774 N.E.2d 1197, 746 N.Y.S.2d 865 [2002] [finding that in order establish a prima facie case that a plaintiff in a negligence action arising from a motor vehicle accident did sustain a serious injury, plaintiff must establish the existence of either a “permanent consequential limitation of use of a body organ or member [or a] significant limitation of use of a body function or system”]).
To demonstrate a “permanent consequential limitation” plaintiff has the burden of establishing that the injury is medically shown to be significant under No-Fault law and “present objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal” (Pommells v Perez, 4 NY3d 566, 576, 830 N.E.2d 278, 797 N.Y.S.2d 380 [2005] [finding that proof of a herniated disc or other soft-tissue injury alone is insufficient to support a finding of a serious injury [*6] under no-fault law. Such objective proof must be supported by evidence of the claimed injury compared to the full range of what is normal]).
Here, defendants provide the examination report of Dr. Ashok Anant which states that plaintiff has a normal range of motion, suffered a minor disc bulge that was not from the accident at issue and that plaintiff suffered a cervical sprain from the accident at issue which has since been resolved (Exh G at 2). Additionally, defendants note that plaintiff proffers the medical report of Dr. Steven Waldman which alleges plaintiff’s serious injury. Defendants highlight that Dr. Waldman’s treatment of plaintiff began 15 months after the accident immediately after she spoke with her attorney. Pursuant to Henry v Peguero, 72 AD3d 600, 603, 900 N.Y.S.2d 49 [1st Dep’t 2010], in which the Court citing Pommells v Perez, 4 NY3d 566, 572, 830 N.E.2d 278, 797 N.Y.S.2d 380 [2005], found that plaintiff’s “fail[ure] to explain the two-week gap between the accident and the commencement of treatment, … ‘interrupt[s] the chain of causation between the accident and the claimed injury.” [**5] Plaintiff received chiropractic treatment after the incident at issue, however plaintiff has been receiving the same form of chiropractic treatment since 2001-2002 (Exh E at 33). This Court does not view the chiropractic treatment received after [*7] the incident to raise to the level of treatment for the incident at issue. Thus, defendants have satisfied their burden and the burden shifts to plaintiff to demonstrate an issue of fact.
In opposition, plaintiff indeed did provide an explanation for the 15-month gap in treatment. Upon reargument, plaintiff states that the 15-month gap in treatment noted by the Court in its original decision was not addressed by defendant in the original motion; however, plaintiff points the Court to the reports of Dr. Stephen Waldman and Dr. Jeffrey M. Culbert. Initially, the Court did not view chiropractic treatment by Dr. Waldman as treatment for the underlying incident. Plaintiff had been treating with Dr. Culbert for general wellness for an extensive period of time prior to the April 21, 2014 accident; however, plaintiff now brings the court’s attention to plaintiff’s testimony describing the treatment she received with Dr. Culbert and how it “differed from the pre-accident well visits” (Mot at 18; Exh H). Plaintiff, Amanda Altavilla then treated with Dr. Jackson, who is located near her college, from August 26, 2014 through May 11, 2015 for a total of approximately sixty-four visits prior to seeing pain [*8] management specialist Dr. Waldman. (id, Exhibit I). Plaintiff has provided an expiation for the gap in treatment and raised an issue of fact. Thus, defendants’ motion to dismiss plaintiff’s Complaint is denied.

Summary Judgment (liability)
[**6] Plaintiff alleges that she was the front seat passenger in a motor vehicle operated by her mother, Katherine Altavilla, which was struck in the rear by defendants’ vehicle while stopped at a red light.
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure … to do [so]” (Zuckerman v City of New York, 49 NY2d 557, 560, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]).
“A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima facie case of negligence on the part of the operator of the rear-ending vehicle, which may be rebutted if that driver can provide a non-negligent explanation for the accident” [*9] (Baez-Pena v MM Truck and Body Repair, Inc., 151 A.D.3d 473, 476, 56 N.Y.S.3d 307 [1st Dep’t 2017]).
Plaintiff submits the testimony of defendant, driver Perry J. West, who testified at deposition that he observed the Altavilla vehicle stopped at a red light behind a tractor trailer when he attempted but failed to break his vehicle before it struck the rear of the Altavilla vehicle propelling it into the tractor trailer (Mot 005, Exh G at 26, 34, 50-51). Further plaintiff highlights that defendant testified that he received tickets and pled guilty for failure to stop and excessive speed from the Police Officer at the accident scene (id. at 45-46). Thus, plaintiff has made a prima facie showing of entitlement to summary judgment and the burden shifts to defendants to raise an issue of fact or non-negligent explanation for the accident.
[**7] Defendants partially oppose plaintiff’s motion for summary judgment on the issue of liability. Defendants concede that plaintiff Amanda Altavilla was an innocent passenger who bears no responsibility for the subject automobile accident and is entitled to summary judgment on the issue of liability; however, defendants state that plaintiff’s motion should only be granted to the extent that, as an innocent passenger, she is deemed free of culpable conduct. Defendants state that the driver [*10] of plaintiff’s vehicle, who is plaintiff in another action involving the underlying accident, failed to make a motion on the issue of liability. However, here, defendants have failed to proffer a valid non-negligent explanation for the accident and failed to raise an issue of fact. Thus, plaintiff’s motion on the issue of liability is granted in favor of plaintiff and against defendants.
Accordingly, it is
ORDERED that plaintiff’s motion to reargue is granted; and it is further
ORDERED that, upon reargument, the Court vacates its prior order, dated 9/5/18, and finds that NY Law is the applicable rule of law herein, denies defendants’ motion for summary judgment on the issue of serious injury, and grants plaintiff’s cross-Motion for summary judgment on the issue of liability against defendants is granted; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon plaintiff with notice of entry.
This constitutes the Decision/Order of the Court.
12/17/2018
DATE
/s/ Adam Silvera
ADAM SILVERA, J.S.C.