Summary
In Roman v Sullivan Paramedicine, Inc. (101 AD3d 443 [1st Dept 2012]), the plaintiff was entitled to a special trial preference where her disabling injury prevented her from working, she exhausted her no-fault coverage, received food stamps, and lacked the necessary resources to pay for medical care.
Summary of this case from Bee v. Henegan Constr. Co.Opinion
2012-12-6
Santa ROMAN, Plaintiff–Appellant, v. SULLIVAN PARAMEDICINE, INC., et al., Defendants–Respondents, Arie Nudel, Defendant–Appellant, Deborah L. Master, Defendant. Santa Roman, Plaintiff–Appellant, v. Sullivan Paramedicine, Inc., et al., Defendants–Respondents, Deborah L. Master, Defendant.
Edelman & Edelman, PC, New York (David M. Schuller of counsel), for Santa Roman, appellant. Law Offices of Stewart H. Friedman, Garden City (Robert F. Horva of counsel), for Arie Nudel, appellant/respondent.
Edelman & Edelman, PC, New York (David M. Schuller of counsel), for Santa Roman, appellant. Law Offices of Stewart H. Friedman, Garden City (Robert F. Horva of counsel), for Arie Nudel, appellant/respondent.
Pillinger Miller Tarallo, LLP, Elmsford (Terri S. Hall of counsel), for Sullivan Paramedicine, Inc. and Holli N. Schoonmaker, respondents.
, P.J., SWEENY, RICHTER, ROMÁN, CLARK, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered August 15, 2011, which denied plaintiff's motion for a special trial preference, unanimously affirmed, without costs. Order, same court and Justice, entered April 9, 2012, which denied plaintiff's motion to renew her motion for a special trial preference, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and, upon renewal, the motion granted. Order, same court and Justice, entered March 30, 2012, which granted defendants Sullivan Paramedicine, Inc. and Holli N. Schoonmaker's motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion denied.
This action seeks recovery for injuries, including a disabling lower back injury, which required surgery, allegedly sustained by plaintiff in a motor vehicle accident. CPLR 3403(a)(3) provides that special trial preferences shall be granted in “an action in which the interests of justice will be served by an early trial.” While plaintiff failed to meet her burden in initially moving for a special trial preference on the ground of destitution ( see Martinkovic v. Chrysler Leasing Corp., 29 A.D.2d 636, 286 N.Y.S.2d 195 [1st Dept.1968] ), the deficiencies were cured on renewal, with the submission of a further affidavit from her pain management specialist, an affidavit from her neurosurgeon, and the submission of documents evidencing her monthly household income and expenses.
As plaintiff has now shown that her disabling injury prevents her from working, that she exhausted her no-fault coverage, that she receives food stamps, and that she lacks the resources to pay for necessary medical care, the grant of a special trial preferences is warranted ( see Patterson v. Anderson Ave. Assoc., 242 A.D.2d 430, 662 N.Y.S.2d 34 [1st Dept.1997];Thompson v. City of New York, 140 A.D.2d 232, 528 N.Y.S.2d 77 [1st Dept.1988] ). The affidavit of plaintiff's surgeon was properly submitted on renewal as his prescription for physical therapy was first made only two days before the original motion's return date, and the other additional evidence should have been considered as a matter of substantive fairness ( seeCPLR 2221[e]; Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 376–377, 720 N.Y.S.2d 487 [1st Dept.2001] ).
As to the motion for summary judgment, the moving defendants, the owner and the operator of an ambulance which was the stopped, lead vehicle in the multi-car, rear-end collision at issue here, are entitled to a presumption of negligence against the offending vehicle ( see Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 [1st Dept.2006] ). However, plaintiff and defendant-appellant raised triable issues of fact as to whether the ambulance driver operated her vehicle negligently and proximately caused the accident, with evidence that included plaintiff's testimony that the ambulance driver only noticed that the truck in front of her had stopped when she looked up from a mobile communication device shortly before the crash, and the ambulance driver's admission that there was enough room to move around the obstacle in the road instead of stopping abruptly at the end of an entrance ramp to a highway ( see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610, 891 N.E.2d 726 [2008];Evans v. Fox Trucking, 309 A.D.2d 618, 765 N.Y.S.2d 625 [1st Dept.2003] ).