PLAINTIFF WINS SUMMARY JUDGMENT ON LIABILITY FOR 3 SEPARATE REAR-END COLLISION AUTO ACCIDENTS; HE SURVIVES 3 DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD MOTIONS

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Charles H. Balducci v. George Velasquez

Date: Feb. 7, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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RELATED POSTS:

SUMMARY JUDGMENT ON LIABILITY GRANTED IN AUTO CHAIN COLLISION(Posted by Queens accident attorney Gary E. Rosenberg on Mar 6, 2012)

ACCIDENT VICTIM DEFEATS "THRESHOLD" SUMMARY JUDGMENT MOTION; CASE DOESN'T SAY WHY (Posted by Queens accident attorney Gary E. Rosenberg on Oct 22, 2011)

DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION DENIED; DEFENSE DOCTORS OVERLOOKED SOME OF ACCIDENT VICTIM'S INJURIES(Posted by Queens accident attorney Gary E. Rosenberg on Jan 30, 2012)

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Comment:

The case presents multiple summary judgment motions addressing multiple issues.

This automobile accident case involves three separate collisions occurring in Staten Island.

Accident #1 occurred on August 20, 2005. Defendant George Velasquez >s vehicle rear-ended plaintiff's vehicle.

Accident #2 occurred on May 25, 2007. A vehicle driven by defendant Roxana Behnambakhsh and owned by her and defendant Abbas Behnambakhsh ("the Behnambakhshes") again rear-ended plaintiff's vehicle.

Accident #3 occurred on October 23, 2007. The unlucky plaintiff was for a third time rear-ended, this time by a vehicle owned and operated by defendant Marie Decanio.

All three defendants moved for summary judgment to dismiss plaintiff's case, alleging that he did not suffer a "serious injury" as required by New York's No-Fault law.

The defense orthopedic doctor who examined plaintiff for his first accident found limitations in the ranges of motion of plaintiff's cervical spine (neck area). Further, this doctor tried to attribute plaintiff's injury to the later accidents, without a sufficient basis to make this opinion.

The medical report of the Behnambakhshes' expert, Dr. George V. DiGiacinto, was unaffirmed and, thus, in inadmissible form. (This is a rookie mistake.) Also, the admissible evidence relied upon by the Behnambakhshes "did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the second accident, and the evidence relied upon by Decanio similarly did not eliminate all material issues of fact as to whether the injured plaintiff sustained a serious injury as a result of the third accident."

Since none of the defendants in the actions met their burdens of proof as applicants for summary judgment, they lose, and the issue of "serious injury" goes to trial. It was not even necessary for the Court to consider the sufficiency of plaintiff's papers in opposition to the motions.

The Court also addressed plaintiff's cross-motion for summary judgment on the issue of liability -- his vehicle being struck in the rear in each of the three accidents.

The driver of a motor vehicle has a duty to keep control of his or her vehicle to avoid a collision. The rule is well-established: "A rear‑end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision."

Plaintiff demonstrated his entitlement to summary judgment by submitting his deposition testimony which said that in each of the three accidents he was stopped when struck in the rear.

The defendants couldn't adequately rebut the plaintiff's assertions, and he wins summary judgment in his favor on the issue of liability. This leaves the question of the amount of his money damages for trial -- if at trial he breaches the New York No-Fault "serious injury" threshold.

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