The Bread Truck Driver Hit Our Car from the Rear. Now, He Does Not Want to Pay for the Harms and Losses He Caused. Part 1 of 3

Recently, we found ourselves sitting with a client discussing the defendant’s summary judgment motion. You see, the defendant had already slammed his bread truck into the rear of our client’s automobile, causing physical injuries to our client and lots of property damage to her car. We had filed a lawsuit on her behalf and now, after all her medical records were exchanged and reviewed, the bread truck driver had filed a written motion requesting the court dismiss my client’s lawsuit on the grounds that, even though my client said she was in pain, the medical records failed to show an objectively verifiable injury. What nonsense.

We filed papers opposing the defendant’s request to dismiss the case. Our papers were in three parts: a sworn affidavit from one our our attorneys; a sworn affidavit from a radiologist; and a sworn affidavit from a treating physician.

All three sworn affidavits submitted in support of our client’s case will now be posted to this website. This post constitutes part one of three. Printed below is the sworn affidavit from one of our attorneys, in its entirety:


SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

——————————————————————-x                                                               

SELENA CALDERON ORTEGA,                           

                               Plaintiff,                       AFFIRMATION IN OPPOSITION

                                                                       TO DEFENDANTS’ MOTION

                       –against–                              FOR SUMMARY JUDGMENT

RILEY BAUMES and

WOLFGANG LINE HAUL LP, Index No.: 09648/2017

                                                Defendants.                            

——————————————————————-x

            WILLIAM MARTIN, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury:

I am an attorney with the law firm of MARTIN + COLIN, P.C., the attorneys of record for the plaintiff.  I am thoroughly conversant with the facts and circumstances herein based upon my review of the contents of the plaintiff’s file maintained by this office. 

I make this affirmation in opposition to the summary judgment motion of the defendants brought pursuant to CPLR 3212 and Insurance Law 5102.  The following exhibits are attached hereto: 

Exhibit “1”      May 6, 2016 affirmation of Maxwell Dolan, M.D.

Exhibit “2”      April 7, 2016 affirmed report of Charles J. Burns, M.D.

For all the reasons that follow, I ask that this motion be denied in all respects.

This action arises from a rear-end collision that occurred on September 16, 2016 at approximately 11:11 a.m. on Route 9A at or near the intersection of Chappaqua Road in the village of Briarcliff Manor, County of Westchester, State of New York, wherein defendant, Riley Baumes, drove his vehicle, a delivery truck, into the rear-end of plaintiff’s vehicle. 

On September 23, 2016, Ms. Calderon Ortega went to the Phelps Memorial Hospital Center Emergency Department complaining of increasing back pain.  After examination she was discharged with the instructions to take 3 Advil every 6 hours as needed, to avoid strenuous activity, and to follow up with her doctor.

Subsequently, on October 16, 2016, Ms. Calderon Ortega began treating with neurologist Maxwell Dolan.  (Exhibit “1”).  Plaintiff presented complaining of middle and lower back pain with muscle spasms.  (Exhibit “1”). 

As set forth above, as recently as October 2015, which was the last time Ms. Calderon Ortega saw Dr. Dolan, Ms. Calderon Ortega continued to complain of severe back pain which interrupted her sleep.  Ms. Calderon Ortega reported feeling anxious as a result of her injury. Dr. Dolan continued to observe limitations in Ms. Calderon Ortega’s range of motion, spasm and tenderness of the paraspinal muscles.  Dr. Dolan opined that Ms. Calderon Ortega was partially disabled as a result of the accident.

Ms. Calderon was required to be examined by the defendant’s doctor on December 4, 2015.  Days later, after Ms. Calderon Ortega’s October 2015 visit to Dr. Dolan, she left the country to study abroad in Colombia.  The plaintiff continues to attend school in Colombia. It is for this reason and this reason alone that Plaintiff has not continued to treat with Dr. Dolan. There is nothing in Dr. Dolan’s medical records to suggest that plaintiff has fully recovered from the accident.  While it is clear that she has made some improvement, her recovery is far from complete.

Ms. Calderon Ortega treated with Dr. Dolan for over a year from her initial appointment in October 2016, as discussed in Dr. Dolan’s attached affirmation, until she left the country to study abroad (Exhibit “1”). 

While it is true that plaintiff Selena Calderon Ortega testified at her deposition on November 20, 2017 that she was not employed at the time of the accident and was not a student, that does not mean that she was not injured.  (Exhibit “D”, p. 48-49). 

While it is true that plaintiff Selena Calderon Ortega testified at her deposition that she was not involved in athletic activities prior to the accident, was not a member of an exercise facility, and did not play sports prior to the accident, that does not mean that she was not injured.  (Exhibit “D”, p. 52-53). Those facts do not support defendants’ contention that she was not injured as a result of this accident. 

Although plaintiff may not have been leading the most active and energetic lifestyle prior to the accident, it is conclusively established by these papers that, within days of the accident until the time that she left for Colombia, Ms. Calderon Ortega was continuously treating with Dr. Dolan.  (Exhibit “D”, p. 40). Plaintiff further testified that she was regularly attending physical therapy two days per week (Exhibit “D”, p 43).

In other words, it is not fair to say that because plaintiff was not doing much prior to the accident, the accident could not have possibly altered her life that much.  Defendants seem to be arguing that because she was not doing much prior to the accident, not much has changed as a result of the accident, and therefore, she doesn’t meet the serious injury threshold.

The real issue is how much pain and injury does plaintiff have as a result of the accident, and how much does it affect her daily life.  Here, plaintiff Selena Calderon Ortega testified that she continues to have lower back pain every day and that she tries to relax and take it easy to relieve the pain.  (Exhibit “D”, p. 51).  Plaintiff testified that she still takes the strong prescription medication prescribed by Dr. Dolan for her continued pain.  (Exhibit “D”, p. 52).

While the defendants try to make much of the fact that plaintiff was not that active prior to the accident, they were also very selective about the questions they asked during Plaintiff’s deposition.  For example, defendants did not ask her at her deposition about the ways that her daily life has changed.  Defendants did not ask her at her deposition about activities that she now has difficulties with.  Defendants did not ask her at her deposition about activities that she can no longer do at all.

Defendants Presented No Prima Facie Case for Summary Judgment

As a preliminary matter, in order to prevail on a motion for summary judgment, the defendants must make a prima facie substantive showing.  The New York State Court of Appeals has held that summary judgment must be denied if the moving party fails to make a prima facie showing of entitlement to judgment as a matter of law, regardless of the sufficiency of the opposing papers.  Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985).

Where the record contains objective diagnostic proof, in admissible form establishing a disc injury, causally related to the subject accident, along with objectively measured quantified range of motion limitations, and qualified limitations, clinically correlated to the disc injury, the motion must be denied.  Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011); Toure v. Avis, 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002). 

When the proof submitted by defendants “in support” of the motion by defendants demonstrates questions of fact, the motion must be denied. E.g., Astudillo v. MV Transportation, 84 A.D.3d 1289, 923 N.Y.S.2d 722 (Second Dept. 2011).

The defendant as the party seeking summary judgment must demonstrate absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses.  Aimatop Restaurant Inc. v Liberty Mut. Fire Ins. Co., 74 A.D.2d 516, 425 N.Y.S.2d 8 (First Dept. 1980).  Since the records submitted with the motion raise questions of fact, the motion must be denied.

In the present matter, defendants’ expert Ronald L. Munn, M.D., acknowledged that, when he met the plaintiff fifteen months after the accident, the plaintiff was still taking prescription pain medication in order to cope with the pain.   Defendants’ expert then went on to state that the plaintiff had no disability and had fully recovered from her injuries as a result of the accident. However, defendants’ expert had to concede that Ms. Calderon Ortega’s demonstration of a full recovery was made while she was on prescription medication.  Had Dr. Munn claimed that she was fully recovered without the continued need for prescription medication, one could argue that defendants’ met their prima facie burden.  However, they did not.  Ms. Calderon Ortega could only demonstrate her physical condition, which Dr. Munn found to be fully recovered, while she was on prescription medication to relieve her ailments. 

For Dr. Munn to acknowledge that Ms. Calderon Ortega continues to require prescription medication in order to function normally, then he must also implicitly acknowledge that there is a licensed medical doctor that is writing the prescriptions for her.  He must also implicitly acknowledge that the doctor prescribing the medication would only do so after physical observation, and a finding that the remedial effect of the medication outweighs the side effects.  Therefore, by definition, the defendants have not met their prima facie burden.

Stated differently, defendants’ expert is essentially saying the following:  A full fifteen months after the accident, Selena Calderon Ortega continues to seek medical treatment from a physician.  Said licensed medical provider is examining her and determining that, a) she has the complaints; and b) that she requires prescription medication to address the complaints. The doctor has further determined that he will write her the prescription because he has determined that the plaintiff is suffering so much pain that the benefits of the prescription will outweigh the side effects.  Therefore, Dr. Munn must acknowledge that the prescribed medication has been prescribed out of medical necessity, and that there must be a continued medical necessity as Ms. Calderon Ortega continues to require the medication.  Thus, when Dr. Munn says that the patient is fine (while on prescription medication), he is implicitly acknowledging that she continues to suffer, seek medical treatment, receive medical treatment, and require a powerful prescription drug to address her ailments.

As such, the affidavit of defendants’ own expert witness fails to make out a prima facie case for summary judgment in favor of the defendant.  On that ground alone, the defendants’ motion must be denied in all respects.

QUESTIONS OF FACT

Insurance Law 5102(d) defines the term “serious injury” in relevant part:

(d) “Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function of system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Insurance Law 5102(d).  (Emphasis added).

90/180

In Refuse v. Magloire, 83 A.D.3d 685, 919 N.Y.S.2d 886 (Second Dept. 2011), the Appellate Division held:

The plaintiffs demonstrated their entitlement to judgment as a matter of law by establishing, prima facie, that they each sustained a serious injury within the 90/180-day category of serious injury under Insurance Law 5102(d) (citations omitted.)  In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiffs, who both alleged that they sustained serious injuries to, inter alia, the cervical and lumbar regions of their spines, each had a medically-determined injury that prevented them from performing substantially all of the material acts constituting their usual and customary daily activities during not less than 90 days during the first 180 days immediately following the subject accident (see Insurance Law 5102[d]).  In his reports detailing his medical findings from his recent examinations of the plaintiff, the defendant’s expert orthopedic surgeon, Alan J. Zimmerman, failed to relate those findings to the plaintiff’s 90/180-day serious injury claims, which were clearly set forth in the bill of particulars.  Thus, the reports were not sufficient to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (citations omitted).  Accordingly, the Supreme Court properly granted the plaintiffs’ motion for summary judgment on the issue of serious injury

83 A.D.3d 685, 919 N.Y.S.2d 886. (Emphasis added). 

Similar to Refuse, supra, in the present matter, defendants’ examining medical expert, Ronald L. Munn, M.D. (Defendants’ Exhibit “E”) did not comment on the 90/180 category, which was clearly set forth in plaintiff’s bill of particulars.  (Defendants’ Exhibit “C”).  See, also, Hoisington v. Santos, 48 A.D.3d 333, 851 N.Y.S.2d 528 (First Dept. 2008); Thompson v. Ramnarine, 40 A.D.3d 360, 835 N.Y.S.2d 566 (First Dept. 2007); Toussant v. Claudio, 23 A.D.3d 268, 803 N.Y.S.2d 564 (First Dept. 2005); Burford v. Fabrizio, 8 A.D.3d 784, 777 N.Y.S.2d 810 (First Dept. 2004); Loesburg v. Jovanovic, 264 A.D.2d 301, 694 N.Y.S.2d 362 (First Dept. 1999). 

It is worth noting that CPLR Rule 3212 states “If it shall appear that any party other than the moving party is entitled to summary judgment, the Court may grant such judgment without the necessity of a cross-motion.”  CPLR Rule 3212(b).

Based on the preceding, plaintiff has established a prima facie case for “serious injury” under the 90/180 category.  Defendants have utterly failed to address this category.  Therefore, the defendants’ motion should be denied in all respects.

SIGNIFICANT LIMITATION and PERMANENT CONSEQUENTIAL LIMITATION

Whether a limitation of use qualifies as “significant” or “consequential” relates to medical significance and involves a qualitative or quantitative assessment based on the normal function of the body part or system.  In Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 756 N.Y.S.2d 865 (2002), the Court of Appeals stated:

In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury (citations omitted).  An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system. 

Toure, supra, 98 N.Y.2d 350, 746 N.Y.S.2d 868.

In the Manzano v. O’Neil decision within Toure, supra, the Court of Appeals held that expert testimony that the plaintiff suffered a herniated disc as a result of an automobile accident, based upon his interpretation of MRI films and correlating the herniated discs with her inability to perform certain normal tasks was sufficient to establish that plaintiff had sustained a serious injury.

In this case, plaintiff presented the testimony of her treating physician, Dr. Dolan, who opined that plaintiff suffered two herniated cervical discs as a result of the automobile accident.  His conclusion was supported by objective evidence introduced at trial, namely, the MRI films that he interpreted.  Although this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff’s neck or back, he described the qualitative nature of plaintiff’s limitations based on the normal function, purpose and use of her body parts.  In particular, Dr. Dolan correlated plaintiff’s herniated discs with her inability to perform certain normal, daily tasks.  These limitations are not so insignificant as to bar plaintiff’s recovery under the No-Fault Law. 

Toure, supra, 98 N.Y.2d 355, 746 N.Y.S.2d 871.

In Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011) the Court of Appeals clarified the rule espoused by that Court in Toure, supra, regarding quantitative assessment of injury:

Toure, however, imposed no such requirement of “contemporaneous” quantitative measurements, and we see no justification for it.

There is nothing obviously wrong or illogical about following the practice that Bleicher followed here- observing and recording a patient’s symptoms in qualitative terms shortly after the accident, and later doing more specific, quantitative measurements in preparation for litigation.

* * *

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results.  Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation.  A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.  We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

Toure, supra, 18 N.Y.3d 217-218.

Where the defendant’s physician disputes the veracity of plaintiff’s examination, implying that he or she is malingering, the question of credibility must go to the jury.  Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655 (2011).

In the case of plaintiff herein, the medical interpretations made by Dr. Dolan included objective testing, including MRIs, the actual observation of muscle spasms in her back at 7 office visits, and the observed limitations in plaintiff’s range of motion, revealed disc injuries and radiculopathies causally related to the car crash of September 16, 2016.  Dr. Dolan has correlated the plaintiff’s limitations and losses to these injuries, and opined that they are significant, consequential, and permanent.

Summary judgment may only be granted where it has been clearly ascertained that there is no triable issue of fact.  Issue finding, rather than issue determination, is the function of the Court in determining a summary judgment motion.  Suffolk County Dept. of Social Services v. James M., 83 N.Y.2d 178, 608 N.Y.S.2d 940 (1994).  It must be clear that no material triable issue of fact is presented.  Kornfeld v. NRX Technologies, Inc., 62 N.Y.2d 686, 476 N.Y.S.2d 523 (1984). 

“Even the color of a triable issue forecloses the remedy” of summary judgment.  Rudnitsky v. Robbins, 191 A.D.2d 488, 489, 594 N.Y.S.2d 354 (2nd Dept. 1993); see Matter of Cuttitto Family Trust, 10 A.D.3d 656, 657, 781 N.Y.S.2d 696 (2nd Dept. 2004).  Moreover, in deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion.  See, Pearson v. Dix McBride, LLC, 63 AD3d 895, 883 N.Y.S.2d 53 (2nd Dept. 2009); Mosheyev v. Pilevsky, 283 A.D.2d 469, 725 N.Y.S.2d 206 (2nd Dept. 2001).

The proof herein establishes that plaintiff has met the serious injury requirement for three categories.  The defendants’ proof, at best, raises questions of fact.  Therefore, this Court cannot grant dismissal as a matter of law.  Thus, the motion should be denied and the matter scheduled for trial.

WHEREFORE, it is respectfully requested that the defendants’ motion be denied in its entirety, and that such other and further relief be granted as this Court deems just and proper.

Dated:  White Plains, New York

             May 27, 2018

                                                                        ____________________________________

                                                                        WILLIAM MARTIN

Our Recent Win Featured in New York Law Journal

One of Our Legal Victories Was Recently Featured in the New York Law Journal as a Decision of Special Interest – Dec 2012

Matter of Andrews v. County of Rockland

ROCKLAND COUNTY
Alternative Dispute Resolution

New York Law Journal

December 18, 2012

Click here to link to the full text opinion: http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202581502644

Justice Linda Jamieson

Click here to read Judge Jamieson’s Judicial Profile on NYLJ: http://judges.newyorklawjournal.com/profile/Supreme_Court,_Westchester_County/Linda_Jamieson/Linda_Jamieson-1124.xml

Summary of Decision:

Andrews sought to overturn an arbitration decided against her in this personal injury action. She was injured when the Rockland County T.R.I.P.S. bus she was riding rounded a corner and she was thrown from her seat. The arbitrator concluded he did not need to decide if the driver was negligent as Andrews was not wearing a seatbelt, ruling she would not have fallen had she been wearing it, thus was barred from recovering regardless if respondent was negligent. The court concluded that while the award offered “barely colorable justification for the outcome reached,” it was fatally flawed as the arbitrator failed to determine the percentage of culpability on Andrews’ part for failing to wear her seatbelt, and the driver’s part, if any. It noted the arbitrator appeared to have concluded the accident was solely Andrews’ fault, but stated it was incumbent on the arbitrator to decide the percentage of liability attaching to each party. The court ruled it could not speculate as to the arbitrator’s intent. It granted the petition to set aside the award and remanded the case to be heard by a different arbitrator.

Entire Decision: as published by ALM Properties, Inc.

Page printed from: New York Law Journal

Here’s the link: http://www.newyorklawjournal.com/CaseDecisionFriendlyNY.jsp?id=1202581502644#

In the Matter of the Application of Paula Andrews, Petitioner, For a Judgment Pursuant to CPLR art. 75 v. County of Rockland, Respondent, 033948/12Supreme Court, Rockland County033948/12 New York Law Journal 12-18-2012Cite as: Matter of Andrews v. County of Rockland, 033948/12, NYLJ 1202581502644, at *1 (Sup., Ro, Decided November 2, 2012)Justice Linda Jamieson

Decided: November 2, 2012

ATTORNEYS

Attorneys for Petitioner: Martin & Colin, P.C., White Plains, NY.

Attorneys for Respondent: Saretsky Katz et al., New York, NY.

The following papers numbered 1 to 5 were read on this motion:

PaperNumber

Notice of Petition, Petition and Exhibits1

Memorandum of Law2

Affirmation and Exhibits in Opposition13

Memorandum of Law in Opposition4

Reply Memorandum of Law5

DECISION AND ORDER

*1

Petitioner, a Rockland County resident who was injured while riding on a Rockland County “T.R.I.P.S.” bus, brings this petition seeking to overturn an arbitration decision rendered

*2

against her on April 17, 2012 by a JAMS arbitrator, Allen Hurkin-Torres. The parties had a full eight hours of hearings, including testimony from petitioner and her son, two bus drivers from respondent and experts from both sides.

In his decision, the arbitrator held that “a lengthy decision here is unwarranted since the facts and general principles of law governing liability are largely uncontroverted.” The award goes on to recite the undisputed facts2 — that on the day of the accident, plaintiff had a cane that she used as a result of a previous injury; that she sat in the front of the bus; and that when the bus rounded a corner, she was thrown from her seat to the floor, where she was again seriously injured.

The decision then analyzes the law concerning injuries suffered on a bus, stating that “the movement must be unnecessarily sudden, unusual or violent” — in other words, liability only attaches when a bus driver was negligent, as opposed to the “usual movements of a bus, which include bouncing.…” The arbitrator found that he need not decide whether the driver was negligent (“there is no need to make a determination as to whether the movement of the bus in this case was sufficiently sudden, unusual or violent”), however, because

*3

petitioner was not wearing her seatbelt at the time that the bus rounded that corner. The arbitrator found that “under no scenario would petitioner have fallen to the floor had she been wearing her seatbelt. This being so, it is uncontroverted that she would have suffered no injury. Accordingly, petitioner is barred from recovering irrespective of whether respondent was negligent.”

Analysis

The basis for the petition is that petitioner believes that the arbitrator “acted with manifest disregard of the law when he did not decide the facts of the case.” In doing so, petitioner argues, he “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made,” as set forth in CPLR §7511(b)(1)(iii). She further claims that the award “violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” because the arbitrator “did not find any facts” (emphasis omitted), and that he “concluded that he did not have to determine what the facts were in this case because a high-low agreement was in place.”

It is well-settled that “In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role. Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration

*4

award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice.” In the Matter of New York State Correctional Officers and Police Benev. Ass’n. Inc. v. State of NY, 94 N.Y.2d 321, 704 N.Y.S.2d 910(1999). See also In the Matter of the Arbitration between Albany Police Supervisor’s Ass’n v. City of Albany, 95 A.D.3d 1491, 944 N.Y.S.2d 675 (3d Dept. 2012).

Since the Court must give deference to the arbitrator’s decision, and “cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts,” Shenendehowa Cent. School Dist. Bd. of Educ. v. Civil Service Employees Ass’n, Inc., 90 A.D.3d 1114, 934 N.Y.S.2d 540 (3d Dept. 2011), the Court may find that an “award is irrational only if there is no proof whatever to justify the award.” Susan D. Settenbrino, P.C. v. Barroga-Hayes, 89 A.D.3d 1094, 933 N.Y.S.2d 409 (2d Dept. 2011). As the Second Department held in Susan D. Settebrino, P.C., “An arbitration award must be upheld when the arbitrator offers even a barely colorable justification for the outcome reached.”

Here, the Court finds that while the award did offer a “barely colorable justification for the outcome reached,” the

*5

award is fatally flawed because the arbitrator failed to determine the percentage of culpability on petitioner’s part for her failure to wear her seatbelt, and on the driver’s part — if any. The arbitrator concluded that it did not matter whether the bus driver had rounded the corner too fast, or otherwise had driven improperly, because had petitioner been wearing her seatbelt in this accident, she would not have fallen to the floor.3 In other words, what the arbitrator appears to have concluded is that petitioner’s failure to wear her seatbelt was the sole cause of the accident. Putting aside the unlikelihood that this was actually the case, the Court finds that it was incumbent upon the arbitrator to determine the percentage of liability attaching to each party. The Court should not have to assume or guess at the arbitrator’s assessment of the parties’ liability. As the First Department held in Hamilton Partners Limited v. Singer, 290 A.D.2d 316, 736 N.Y.S.2d 219 (1st Dept. 2002), a court has authority

to remand the matter to the arbitration panel when the panel’s award does not dispose of a particular issue raised by the parties or indicate the panel’s intention with respect to it, or when the award is ambiguous and not sufficiently explicit, since a court may not impose its own interpretation of the award. Here, the award is not only ambiguous as to the intent of the panel, but also fails to address

*6

and dispose of the issues raised by the parties or to make any specific findings of fact or credibility. Given the diametrically opposed positions of the parties, the award, which apparently denied both sets of claims on the merits, cannot be harmonized or interpreted without speculation as to the panel’s intent.

This is exactly what happened here. The Court cannot speculate as to the arbitrator’s intent. Accordingly, the Court grants the petition, and sets aside the arbitrator’s award. The case shall be re-heard by a different arbitrator — unless the parties wish to attempt to settle it between themselves.

The foregoing constitutes the decision and order of the Court.

1. This Court’s Part Rules — and, indeed, the Rules of every Court in this County — require the submission of Working Copies in an e-filed case. The Court did not receive Working Copies from respondent. Counsel is warned that the Court will not overlook this omission again.

2. Petitioner argues repeatedly that there were many disputed facts. A review of the papers shows that this is true. However, the few facts set forth in the award are all entirely undisputed.

3. The Court does not agree with petitioner’s argument on p. 33 of its moving Memorandum of Law that the arbitrator’s conclusion was so broad as to encompass any accident that might have happened, including the driver driving off a cliff. Plainly, a seatbelt would not prevent injuries in that scenario.