Opinion
5712/06.
Decided August 23, 2007.
KRISTINE M. CAHILL, ESQ., FINKELSTEIN PARTNERS, Attorneys for Plaintiffs, Newburgh, New York.
BETSY N. ABRAHAM, ESQ., Law Firm of JAMES R. McCARL ASSOCIATES, Attorneys for Defendants, Montgomery, New York.
The plaintiffs move for summary judgment on the issue of liability. The defendants cross-move for an order compelling the plaintiffs to respond to the defendants' outstanding demands for discovery.
SUMMARY JUDGMENT
It is well settled that in order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." ( Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067.) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. ( Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681.) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. ( Zuckerman v. City of New York, 49 NY2d 557, 562.)
On this application, the plaintiffs rely upon the deposition testimony of the parties. Plaintiff Joseph Clarke testified that at the time of the accident, he was traveling on New Hamburg Road and stopped at a red light at the intersection with Route 9D. The uncontroverted testimony established that the defendant had been let out of school early due to a snowfall and that snow was accumulating on the road at the time of the accident. Defendant Thomas Condon, Jr. testified that he was traveling south on Route 9D intending to turn right onto New Hamburg Road. As the defendant attempted his right hand turn through a green light from Route 9D onto New Hamburg Road, his car slid into the plaintiffs' stopped vehicle. On this application, the plaintiffs have established that defendant Thomas Condon, Jr. crossed into plaintiff Joseph Clarke's lane of traffic while he was stopped. It has been held that when a vehicle comes over onto the wrong side of the road and damages result, it is a prima facie case of negligence. ( Pfaffenbach v. White Plains Express Corp., 17 NY2d 132.) It is incumbent upon the defendant to explain whether the collision was due to a reasonable, non-negligent cause. ( Pfaffenbach, supra.)
In response to this motion, the defendants have presented evidence that the roads were covered with snow at the time of the accident and that defendant Thomas Condon, Jr. was traveling at a reasonably slow speed during his turn. The parties agree that the defendants' vehicle slid during the turn. Although the plaintiffs contend that defendant Thomas Condon, Jr. was driving at an excessive rate of speed and unsafely, the defendants' testimony to the contrary creates a triable issue of fact which must be determined at trial. Therefore, it is ordered that the plaintiffs' motion for summary judgment is denied.
COMPEL DISCLOSURE
The defendants' counsel has failed to provide a separate affirmation of good faith effort as required by 22 NYCRR § 202.7. However, counsel's affirmation in support of the cross-motion substantially complies with that provision.
At a preliminary conference conducted on December 18, 2006, the court directed that the plaintiffs provide unrestricted authorizations on or before January 15, 2007. Some authorizations demanded by the defendants have not been provided by the plaintiffs. These are an employment authorization for the New York City Transit Authority; medical authorization for Dr. David Scuccimara; and authorization for tax returns for the years 2000 through the present.
The plaintiffs have provided an authorization for employment records but have restricted it for the years 2004 to the present. The plaintiffs have refused to provide an unrestricted authorization for Dr. David Scuccimara and have declined to produce an authorization for tax records. The plaintiffs' counsel avers that the plaintiffs' tax returns are "confidential."
The defendants have demanded authorizations for employment records without any date restriction. The plaintiffs' verified bill of particulars indicates that "plaintiff will claim loss of fringe benefits, including pension, profit sharing, medical insurance, sick leave, vacation and other general fringe benefits" in addition to lost wages and "potential lost earnings." The plaintiffs also indicate in their bill of particulars that the claim for "potential lost earnings," will include "base salary at the time of the accident, which includes all reasonable increases on the basis of merit, seniority, inflation, as well as, all increases secondary to promotions."
At the time of the accident and at the time of the deposition, plaintiff Joseph Clarke was employed by the New York City Transit Authority where he had been employed since April 19, 1986. Subsequent to his deposition, plaintiff Joseph Clarke retired with a medical disability from employment. At his deposition, the plaintiff testified that during the nine years and eights months he was a bus operator, he was involved in a "few" accidents but he could not remember whether he was injured in any of them. Additionally, the plaintiff testified that "there were several incidents on board (his) bus" which resulted in unspecified injuries. Although the plaintiff can only recall one specific incident and injury, he did testify that he "probably" missed work as a result of these on-the-job injuries. It is significant to note that although the plaintiffs' counsel now objects to providing unrestricted authorizations as ordered by the court, at the deposition plaintiffs' counsel specifically stated, "We will get you an authorization for the New York City Transit Authority and we will get you his file."
I find that the plaintiffs have no basis to refuse to provide unrestricted authorizations for all of the plaintiff's employment records as previously ordered by the court.
The plaintiffs decline to provide an authorization for the medical records of Dr. Scuccimara, although they concede that Dr. Scuccimara was plaintiff Joseph Clarke's treating physician for ten years. It is the plaintiffs' position that since Dr. Scuccimara was not his treating physician at the time of the accident, that the records are not relevant. As previously noted, the plaintiff has acknowledged that he was "probably" injured on more than one occasion on the job which injuries took place prior to the subject motor vehicle accident. The plaintiffs have presented no basis to deny production of the demanded authorization.
"Generally, a party seeking the production of tax returns must make a strong showing of necessity." ( Dore v. Allstate Indemnity Company, 264 AD2d 804 [2d Dept. 1999].) In order to sustain this strong showing of necessity, the party must demonstrate that the records contain relevant information which cannot be obtained from any alternative source. ( Zimmer v. Cathedral School of St. Mary and St. Paul, 204 AD2d 538, 539 [2d Dept. 1994].) The defendants assert that plaintiffs' tax records are necessary in order to defend against the claim for lost wages and future lost earnings. However, the defendants have not made a showing that this information is not available from other sources, such as the plaintiffs' employment records.
Therefore, it is ordered that the defendants' motion is granted and the plaintiffs shall be precluded from offering any testimony at trial with regard to plaintiff Joseph Clarke's medical condition and lost earnings unless unrestricted authorizations are provided to the defendants' counsel within thirty days of the date of this order for Dr. Scuccimara and the New York City Transit Authority. The defendants' demand for authorizations to produce the plaintiffs' tax records is vacated with leave to submit a demand upon a showing of necessity.
The foregoing constitutes the decision and order of the Court.