Holman v. City of New York

• Decision Date: 13 March 2008
• Docket Number: 52118/02.
• Citation: 19 Misc.3d 600,2008 NY Slip Op 28089,853 N.Y.S.2d 512
• Parties: ERIC HOLMAN, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
• Court: New York Supreme Court

19 Misc.3d 600

853 N.Y.S.2d 512

2008 NY Slip Op 28089

ERIC HOLMAN, Plaintiff, v. CITY OF NEW YORK et al., Defendants.

52118/02.

Supreme Court, Kings County.

March 13, 2008.

Cullen & Dykman LLP (Kevin C. McCaffrey of counsel), for defendants.

Bisogno & Meyerson (George D. Silva and Lori Fine of counsel), for plaintiff.

OPINION OF THE COURT

ROBERT J. MILLER, J.

In this action, plaintiff Eric Holman seeks to recover for injuries allegedly sustained by him on October 15, 2001 when he tripped and fell in front of 507 82nd Street, Brooklyn, New York, a premises owned by the defendant City of New York. The complaint also alleges liability on the part of defendant Keyspan Energy Co. as a result of work they did at the accident location.

Both defendants have interposed answers to the complaint. Notwithstanding same, they now move pursuant to CPLR 3211 (a) (1) asserting that:

"a complete defense is founded upon documentary evidence by way of plaintiff's own statements to several physicians in medical records, all of which indicate that plaintiff was injured while working at the World Trade Center location on October 15, 2001—not, as alleged, while walking at or near 507 82nd Street in Brooklyn, New York. In light of plaintiff's own statements no action may lie herein."

CPLR 3211 (e) provides that the motion is to be made "[a]t any time before service of the responsive pleading is required." The instant motion clearly doesn't comply with the requirement.

In addition, in order to prevail on a dismissal motion pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of plaintiff's claim. (Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2d Dept 2006].)

Defendants rely on certified hospital records of Victory Memorial Hospital as the documentary evidence which forms the basis for their motion. On two occasions, the medical records indicated a doctor's notation where plaintiff advised a treating physician that he injured his left leg while "sifting rubble" at the World Trade Center disaster site and further stated that his left knee was injured when he fell against concrete at the World Trade Center site.

Defendants also submit the affidavit of an employee of Keyspan who states that Keyspan provides no service to any location in Manhattan and had no property or facility which serviced the World Trade Center.

With respect to the standard courts have followed in weighing whether the documentary evidence relied upon warrants dismissal, courts have held that the document must conclusively resolve all factual issues. (Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650 [2006]; McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d 646 [2d Dept 2008]; Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002].)

Here, the documents relied upon, medical records, contain notes of a doctor recording comments made by the plaintiff. Defendants fail to cite any case where medical records of this type constitute the type of documentary evidence contemplated by the legislature when it enacted CPLR 3211 (a) (1). The court has not located any cases where a document prepared by a third party which contains notes of a conversation with a party was the basis of a dismissal finding.

David D. Siegel, Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10) notes:

"We would be remiss, however, if we did not attempt to suggest a rule of thumb whereby to gauge whether an item qualifies as `documentary'. The word apparently aims at a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion is based."

The medical records submitted in support of the motion do not meet the criteria outlined by Siegel or set forth by the Courts in Goshen, McMorrow, or Martin.

If in light of the fact that both parties submitted...