Opinion
No. 2014–0360.
04-27-2015
Donald PLEW, Plaintiff, v. John Allen SNYDER, Ryder Truck Rental, Inc., and Ginsberg's Institutional Foods, Inc., Defendants.
John A. DeGasperis, Esq., Basch & Keegan, LLP, Kingston, Counsel for Plaintiff. Christian J. Soller, Esq., Hodgson Russ, LLP, Albany, Counsel for Defendant.
John A. DeGasperis, Esq., Basch & Keegan, LLP, Kingston, Counsel for Plaintiff.
Christian J. Soller, Esq., Hodgson Russ, LLP, Albany, Counsel for Defendant.
LISA M. FISHER, J.
This is a motor vehicle accident case wherein Plaintiff was allegedly injured when Defendants' tandem tractor trailer truck collided with Plaintiff's vehicle as he was attempting to merge onto a highway. Some paper disclosure has been exchanged and the depositions of Plaintiff and the responding State Trooper have been completed. Plaintiff is still undergoing medical treatment and assessment, including an evaluation which was allegedly to be conducted on March 25, 2015—notably after the date the motion was made. None of the Defendants nor any other witnesses have been deposed.
Rather than continue with disclosure, Defendants move for summary judgment pursuant to CPLR R. 3212 arguing that Plaintiff has failed to make out his prima facie case of negligence against Defendants. Defendants also move for summary judgment arguing Plaintiff has not sustained a “serious injury” per his own admissions at his deposition. Plaintiff opposes the motion, arguing that Defendants' motion is premature as disclosure has not been completed. Plaintiff further argues that Defendants' motion lacks merit because it relies on the confused testimony of Plaintiff, who has allegedly sustained a traumatic brain injury affecting his memory which affords him leniency under the Noseworthy doctrine.
Plaintiff's opposition also attached an altered deposition transcript changing many of Plaintiff's deposition answers to more favorable ones. Also included is the affidavit of Holly Walsh–Plew, Plaintiff's wife. Defendants object to the production of both documents arguing 1) the changes to the deposition transcript were never served on them within sixty (60) days pursuant to CPLR R. 3116(a) and 2) Holly Walsh–Plew's affidavit should be disregarded as she is not listed as a witness in Plaintiff's Response to Omnibus Discovery Demands and her affidavit is “self-serving, conclusory, and incredible.”
It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 [2012] ; Sternbach v. Cornell Univ., 162 A.D.2d 922, 923, 558 N.Y.S.2d 252 [3d Dept 1990].) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination.” (Swartout v. Consolidated Rail Corp., 294 A.D.2d 785, 786, 742 N.Y.S.2d 721 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011] ; Greco v. Boyce, 262 A.D.2d 734, 734, 691 N.Y.S.2d 599 [3d Dept 1999] [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”].) Furthermore, the Court of Appeals has stated that “[n]eglience cases by their very nature do not usually lend themselves to summary judgment, since often ... the very question of negligence is itself a question for jury determination.” (Ugarriza v. Schmieder, 46 N.Y.2d 471, 474 [1979].)
It is equally well-settled by the Court of Appeals that “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 demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc., 302 A.D.2d 700, 754 N.Y.S.2d 756 [3d Dept 2003].)
To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Alvarez, 68 N.Y.2d at 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Hollis, 302 A.D.2d at 700, 754 N.Y.S.2d 756.) Such “burden may not be met by pointing to gaps in plaintiff's proof.” (DiBartolomeo v. St. Peter's Hosp. of City of Albany, 73 A.D.3d 1326, 901 N.Y.S.2d 389 [3d Dept 2010] ; accord Dow v. Schenectady County Dept. of Social Servs., 46 A.D.3d 1084, 1084, 847 N.Y.S.2d 711 [3d Dept 2007].) The failure of the moving papers to eliminate all material issues of fact requires the denial of the motion for summary judgment. (See Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642.) If the movant fails to make a prima facie showing, the motion for summary judgment must be denied even if the nonmovant's papers are considered insufficient. (See Winegrad, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; see also Wilson v. Proctor's Theater & Arts Ctr., 223 A.D.2d 826, 636 N.Y.S.2d 456 [3d Dept 1996].)
“A motion for summary judgment is premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence.' “ (Bevens v. Tarrant Mfg. Co., Inc., 48 A.D.3d 939, 942, 851 N.Y.S.2d 707 [3d Dept 2008], quoting Meticheccia v. Palmeri, 23 A.D.3d 894, 895, 803 N.Y.S.2d 813 [3d Dept 2005] ; see Jones v. Town of Delaware, 251 A.D.2d 876, 877, 674 N.Y.S.2d 499 [3d Dept 1998] [providing that the nonmovant should have a “reasonable opportunity for disclosure prior to the motion for summary judgment.”], citing De Vito v. Silvernail, 239 A.D.2d 824, 825–26, 658 N.Y.S.2d 500 [3d Dept 1997] [denying motion for summary judgment on issue of “serious injury” where nonmovant's doctor was unable to render a comprehensive evaluation of the plaintiff's condition].) The nonmovant must demonstrate what material facts the further disclosure would reveal, and mere speculation will be insufficient. (See Bevens, 48 A.D.3d at 942, 851 N.Y.S.2d 707 ; Scofield v. Trustees of Union College of Town of Schenectady, 267 A.D.2d 651, 652, 699 N.Y.S.2d 570 [3d Dept 1999] ; Judd v. Vilardo, 57 A.D.3d 1127, 1131, 870 N.Y.S.2d 485 [3d Dept 2008] [requiring nonmovant “to demonstrate that further discovery could be expected to yield material and relevant evidence raising triable material issues of fact[.]”]; see also Pampris v. Egnasher, 20 A.D.3d 746, 747, 799 N.Y.S.2d 309 [3d Dept 2005] [denying movant's motion for summary judgment where movant had not been deposed and an independent medical examination had not been performed].)
Here, Defendants' motion for summary judgment on liability must be denied as there is a clear question of fact as to causation. Defendants rely heavily on the confused and inconsistent statements of Plaintiff, who at times could not remember his first wife, age of his children, or that he had multiple back and spinal surgeries. But other times he provided lucid testimony of the motor vehicle accident which was only sustained for a few moments before being forgotten or confused. Defendants do nothing more than point to gaps in Plaintiff's case proof (see DiBartolomeo, 73 A.D.3d at 1326, 901 N.Y.S.2d 389 ), which has not yet been fully developed at this early point in the litigation and in disclosure. (See Bevens, 48 A.D.3d at 942, 851 N.Y.S.2d 707, quoting Meticheccia, 23 AD3d at 895 ; see also CPLR R. 3212[f].)
Plaintiff proposes the application of the Noseworthy doctrine. (Noseworthy v. City of New York, 298 N.Y. 76 [1948].) This provides that “an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of the events.” (Lindquist v. County of Schoharie, 126 A.D.3d 1096, 4 N.Y.S.3d 708 [3d Dept 2015].) The doctrine “is inapplicable where ... the defendant has no greater access to the underlying facts than the amnesiac plaintiff.” (Lindquist, 126 at 1096, 4 N.Y.S.3d 708, citing Lynn v. Lynn, 216 A.D.2d 194, 195, 628 N.Y.S.2d 667 [1st Dept 1995].) Defendants do not actually rebut the application of the Noseworthy doctrine in their Reply, but rather claim Plaintiff's “eleventh-hour allegations” of memory loss are “manifestly untrue” as well as contradictory to Plaintiff's own testimony and the medical records. The Court finds Defendants' argument without merit. Plaintiff was diagnosed with a concussion on the day of his accident and his first treatment note states that Plaintiff “does not remember the accident.” (See Plaintiff's Affirmation in Opposition, Exhibit B.) Other medical records also note that Plaintiff's memory greatly suffered after the accident, including the records of to his back surgeon. Plaintiff's Verified Bill of Particulars from August 13, 2014 also alleges a “traumatic brain injury ” and “loss of memory.” This is hardly an “eleventh-hour” allegation. Any argument by Defendants that Plaintiff has manufactured this as a defense is without merit and unsupported by Defendant as this stage in the litigation. As such, the Court applies the Noseworthy doctrine as to Plaintiff's account of the accident thus creating a question of fact sufficient to defeat this summary judgment motion. The Court does not, however, rule that Plaintiff has established entitlement to the Noseworthy doctrine in another summary judgment motion or at trial based on the unsworn and uncertified medical records Plaintiff has submitted in opposition to this motion .
The Court does recognize that Plaintiff is still undergoing treatment with Dr. Wang regarding his alleged brain injury. Further discussion, infra.
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But more importantly, Plaintiff simply does not have equal access to the underlying facts because none of the Defendants have been deposed yet even though they were duly noticed for such. Defendants' motion also did not include any affidavit from any Defendant as to the facts of the accident. Although Defendants' motion included the testimony of NYS Trooper Gregory R. Overholt, he did not witness the accident and he admitted at his deposition that he is not a certified accident reconstructionist. He simply cannot opine as to the cause of the accident in a manner sufficient to meet Defendants' burden. While Trooper Overholt issued two tickets to Plaintiff, Plaintiff did not render a plea and was not convicted of either ticket due to an alleged administrative error. This error was of no fault of either party. Defendant now cannot use this as a sword against Plaintiff as he was only alleged to have committed a traffic infraction and not convicted or plead guilty; the charges were dismissed. Defendant also attached the affidavit of Thomas Churchill, who allegedly witnessed the accident and claimed Plaintiff was the cause of the collision.
Plaintiff also submits the affidavit of his wife, Holly Walsh–Plew. This affidavit too creates a question of fact. While Plaintiff's Response to Omnibus Discovery Demand did not list her as a witness, disclosure is still ongoing and such document is amendable. The Court will also not hold a potential law office failure issue against an allegedly traumatic brain injury victim at this early stage in the litigation, and exercises the preference to decide matters on the merits. (See Dodge v. Commander, 18 A.D.3d 943, 946, 794 N.Y.S.2d 482 [3d Dept 2005] ; Lucas v. United Helpers Cedars Nursing Home, 239 A.D.2d 853, 853, 657 N.Y.S.2d 519 [3d Dept] [“There is a judicial preference to decide cases on their merits.”].) Plaintiff's testimony placed her at the scene of the accident, whereas no other testimony in the record precluded the possibility of her presence. In fact, Trooper Overholt admitted at his deposition that there were other witnesses at the accident scene that he, for whatever reason, did not list in his accident report. Churchill also stated that there were some of Plaintiff's family members at the scene.
Holly Walsh–Plew's account places the fault squarely on Defendants for an unsafe lane change colliding into Plaintiff's vehicle. Unlike Trooper Overholt, she was an actual witness to the motor vehicle accident and was in good position to observe what transpired because she was behind both vehicles. While Churchill was also a witness to the accident, both him and Holly Walsh–Plew have directly opposite testimony. This creates a question of fact and is sufficient defeat summary judgment when viewed in a light most favorable to Plaintiff. (See Vega, 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Sternbach, 162 A.D.2d at 923, 558 N.Y.S.2d 252.)
Defendants' claim that Holly Walsh–Plew's affidavit is “self-serving, conclusory, and incredible” is also unavailing as Churchill's sworn statement falls into the same fallacy. Churchill's sworn statement refers to the Defendant-driver as “John,” showing familiarity with him thus evincing a possible bias, and his statement was sworn on April 24, 2014—two days after Defendants served their Answer. Thus his statement was a product of litigation, and not as part of an unbiased accident investigation.
“On a motion for summary judgment dismissing a complaint that alleges a serious injury under Insurance § 5102[d], the defendant bears the initial burden of establishing by competent medical evidence that plaintiff did not sustain a serious injury caused by the accident.” (Howard v. Espinosa, 70 A.D.3d 1091, 1091–92, 898 N.Y.S.2d 267 [3d Dept 2010], quoting Haddadnia v. Saville, 29 A.D.3d 1211, 1211, 815 N.Y.S.2d 319 [3d Dept 2006] ; see Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 352 [2002] [noting that the defendants have the “initial burden to establish a prima facie case that plaintiff's alleged injuries do not meet the serious injury threshold under the No–Fault Law”]; see also Nowak v. Breen, 55 A.D.3d 1186, 1187, 866 N.Y.S.2d 423 [3d Dept 2008] [“In support of a motion for summary judgment, a defendant must submit competent medical evidence that the plaintiff did not sustain a serious injury.”] [citations omitted].) Only once the defendant has met his burden does it shift “to the plaintiff to submit objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury.” (Nowak, 55 A.D.3d at 1187, 866 N.Y.S.2d 423 ; Toure, 98 N.Y.2d at 350–51, 746 N.Y.S.2d 865, 774 N.E.2d 1197.)
As to Defendants' motion regarding the serious injury threshold, this is also denied. While Defendants spent considerable effort discussing Plaintiff's prior back injuries during his deposition and in their motion, they rely solely on Plaintiff's confused deposition testimony rather than submit any medical evidence. (See Nowak, 55 A.D.3d at 1187, 866 N.Y.S.2d 423 [requiring competent medical evidence to meet initial burden on serious injury motion].) But even if Defendants did provide competent medical evidence as to Plaintiff's back injury, Defendant conveniently failed to even mention Plaintiff's claim for a traumatic brain injury which was plead in Plaintiff's Verified Bill of Particulars. (See Alvarez, 68 N.Y.2d at 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [requiring each every allegation in the complaint and bill of particulars to be addressed to meet initial burden for summary judgment]; accord Hollis, 302 A.D.2d at 700, 754 N.Y.S.2d 756.) In fact, it was not until the Court began to review Plaintiff's papers when it learned that there was even a claim for a traumatic brain injury. Thus, Defendants failed to meet their burden and such burden never shifted to Plaintiff. (See Hughes v. Cai, 31 A.D.3d 385, 385–86, 818 N.Y.S.2d 538 [2d Dept 2006] [denying the defendants' motion for summary judgment on the issue of serious injury even though they met their initial burden as to some of the alleged injuries, the defendants “failed to even address, much less satisfy, their burden with respect to the plaintiff's allegations that her decedent suffered a traumatic brain injury. Since the defendants failed to meet their initial burden on that branch of their [motion], the burden never shifted to the plaintiff ... [and] the issue of serious injury should have been denied without regard to the sufficiency of the plaintiff's opposition papers.”] [citations omitted].)
Even assuming arguendo that Defendants met their burden, their motion is still premature in the eyes of the Court. At the time of Defendants' motion, the lawsuit was not even a year old. Given that this is an alleged brain injury case, the matter is in its mere infancy. Defendants have not claimed any delay by Plaintiff either, nor does the Court's review of the file reveal such delay. According to Plaintiff's attorney, the Plaintiff is still undergoing neurological treatment to assess the extent of his alleged brain injury with the latest noted appointment to have occurred on March 25, 2015. It appears to the Court that Defendants preemptively made the instant motion before Plaintiff was conclusively diagnosed with a brain injury. (See CPLR R. 3212[f] [“Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion ... and may make such other order as may be just.”]; see also De Vito v. Silvernail, supra, 239 A.D.2d 824, 825–26, 658 N.Y.S.2d 500 [3d Dept 1997] [denying motion for summary judgment on issue of “serious injury” where nonmovant's doctor was unable to render a comprehensive evaluation of the plaintiff's condition].)
For these reasons, the Court is also denying the branch of Defendants' motion as to serious injury as the burden never shifted and the motion is premature.Given that disclosure is not yet complete, the Court is denying such motion without prejudice to permit Defendants to move for summary judgment at the conclusion of disclosure. (See Cochran v. Cayuga Med. Ctr. at Ithaca, 90 A.D.3d 1227, 1227, 935 N.Y.S.2d 154 [3d Dept 2011] [“[I]t is well settled that a trial court has broad discretionary power in controlling discovery and disclosure, and only a clear abuse of discretion will prompt appellate action.”] [quote citation omitted]; accord Calabrese Bakeries, Inc. v. Rockland Bakery, Inc., 102 A.D.3d 1033, 1035, 960 N.Y.S.2d 514 [3d Dept 2013].) However, it should be noted that if Defendants decide to move for summary judgment again, such motion should sufficiently rectify the questions of fact raised in this motion. Failure to do so would be inconsistent with this decision and violative of 22 NYCRR § 130–1.1.
The Court further notes that it did not premise its decision on the revised deposition transcript annexed to Plaintiff's opposition papers. Defendants argued Plaintiff failed to comply with CPLR R. 3116 and objected to the production of the revised transcript. There is insufficient evidence contained in the record for the Court to make a decision whether Plaintiff properly complied with CPLR R. 3116, and regardless neither party made any affirmative relief to strike or validate such revisions. The Court expects the parties can amicably resolve such issue without judicial intervention.
The Court has considered the parties' other arguments and found that they are similarly unavailing or rendered academic.
Thereby, it is hereby
ORDERED that Defendants' motion is DENIED, without prejudice, and all relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
Notice of Motion for Summary Judgment, dated February 4, 2015; Affirmation in support of Christian J. Soller, Esq., with annexed exhibits, dated February 4, 2015; Memorandum of Law, dated February 4, 2015;
Affirmation in Opposition of John A. DeGasperis, Esq., with annexed exhibits (except for Exhibit F which was found to have handwritten alterations in it and therefore ignored), dated March 16, 2015; Plaintiff's Affidavit of Holly Walsh–Plew, dated March 15, 2015; and
Affirmation in Reply of Christian J. Soller, Esq., with annexed exhibits, dated March 25, 2015.