Mangione v. Jacobs

• Decision Date: 31 July 2012
• Citation: 950 N.Y.S.2d 457
• Parties: Susanna MANGIONE, Plaintiff, v. Jules J. JACOBS, Ramabel Limo, Inc., and Glener V. Simbana, Defendants.
• Court: New York Supreme Court

950 N.Y.S.2d 457

Susanna MANGIONE, Plaintiff,

v.Jules J. JACOBS, Ramabel Limo, Inc., and Glener V. Simbana, Defendants.

Supreme Court, Queens County, New York.

July 31, 2012.

Chopra & Nocerino, LLP, by Sameer Chopra & Alex Nocerino, Esqs., New York, for the Plaintiff.

Mendolia & Stenz, by Debra A. Malone and Kevin Flores, Esqs., Westbury, for Defendant Jules J. Jacobs.

O'Connor, O'Connor, Hintz & Deveney, LLP, by Ira E. Goldstein, Esq., Melville, for Defendants Ramabel Limo, Inc. and Glener V. Simbana.

CHARLES J. MARKEY, J.

This decision raises an issue of first impression under New York law of whether a plaintiff, who has a pending personal injury action, has engaged in spoliation of evidence by undergoing surgery for her physical problems that she sustained allegedly as a result of the accident before defendants could schedule Independent Medical Examinations ("IMEs"). The Court had invited the parties, even after the return date of the motions, to submit memoranda of law, but none of the submissions raised a case that was precisely on point, thereby leading this Court to conduct its own independent legal research.

On December 2, 2009, the plaintiff Susanna Mangione ("Mangione") was a passenger in a taxi, livery cab, or vehicle for hire (collectively referred to, for sake of convenience, as "the taxi") owned by defendant Ramabel Limo, Inc. ("Ramabel") and operated by defendant Glener V. Simbana ("Simbana"). The vehicle carrying Mangione collided, in Queens County, with the car owned and operated by defendant Jules J. Jacobs ("Jacobs").

First, defendants Ramabel and Simbana have moved for summary judgment only on the issue of liability, contending that the accident was solely the fault of defendant Jacobs. Mangione opposes the motion for summary judgment alleging that, while she was a passenger in the taxi, she had observed its driver, defendant Simbana, talking out loud, conveying the impression that he was, while driving, continuously engaged in conversation with someone while using either an earpiece or a "hands free" telephone device.

In opposing the motion, Mangione's counsel correctly observes that the New York City Taxi and Limousine Commission, for numerous years, has forbade taxi and livery car drivers, from engaging in any telephone conversations, even while using a "hands-free" device, except when the vehicle is parked. Defense counsel for Ramabel and Simbana contend that the regulation was not in effect on the date of the accident.

The starting point for the discussion is N.Y. Vehicle and Traffic Law ("VTL") section 1225–c(3), exempting "hands free" devices from the ban against motorists engaging in cell phone conversations while driving in New York State. See also, VTL § 1225–c(1)(e) [defining a "hands-free mobile telephone"]; VTL § 1225–c(2) [prohibiting cell phone conversations]; Smilow v. New York State Department of Motor Vehicles, 95 A.D.3d 1023, 944 N.Y.S.2d 248 [2nd Dept.2012] [discussing the presumption in VTL § 1225–c(2)(a) & (b) that vehicle's operator was engaged in a conversation with a prohibited cell phone while driving].

Supreme Court Justice Martin E. Ritholtz of this Court, in Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881 [Sup. Ct. Queens County 2007], a significant judicial opinion concerning the use of cell phones while driving and the production of cell phone records, cites numerous articles on psychological science and visual perception and observation, suggesting that "even the use of a hands-free mobile telephone' to engage in a call while operating a motor vehicle, may contribute to causing an accident, and would be relevant to the issue of negligence." Id. at 474, 846 N.Y.S.2d 881.

This Court agrees with plaintiff's counsel that the New York City Taxi and Limousine Commission had in place regulations, banning the use of "a portable or hands-free electronic device" [NYC Taxi & Limousine Commission Rules & Regulations §§ 2–25(h), 6–16(u)(1), 54–14(e)(1), and 55–14(g)(1); see, Tom Namako, Edmund Demarche, and Katherine Romero, "It's Quiet a Ride: Crackdown on Chatty Hacks," N.Y. Post, Dec. 18, 2009; Marisa Taylor, "New York Cracks Down on Cab Drivers Using Cellphones," Wall St. Journal Blog, Oct. 20, 2009] that were more severe and onerous on drivers of taxis, limousines, vehicles for hire, and livery cars than on the general pool of New York State motorists ( VTL § 1225–c(1)(e) & § 1225–c(3)(c) ) (permitting "a hands-free mobile telephone").

The New York City Administrative Code, indeed, has a specific section governing "Passengers' bills of rights." It provides that passengers have a right to "a driver who does not use a cell phone (hand-held or hands free) while driving" taxicabs [NYC Adm. Code § 9–537(c)(14) ], livery cars [Id., § 9–537(d)(10) ], and commuter vans [Id., § 9–537(e)(11) ].

Following the reasoning of Justice Martin E. Ritholtz of this Court, in Morano v. Slattery Skanska, Inc., 18 Misc.3d 464, 846 N.Y.S.2d 881, supra, this Court holds that, under certain circumstances—even without relying on the rules and regulations applicable to drivers of taxicabs, livery cars, and commuter vans—the use of a hands-free cell phone can constitute a distraction for drivers. The conversation of the motorist, even on a hands-free mobile telephone device or apparatus, could divert the driver's mental focus from watching the road to thinking about the topic of conversation. See, State v. Malone, 2011 WL 2582730, slip op. at 5 [N.J.Super. App. Div.2011] [per curiam] ["(T)he Legislature recognized that the use of a hands-free wireless telephone would reduce' the distractions associated with dialing, not eliminate the distractions associated with dialing."; italics in the original].

Accordingly, as a matter of common law negligence, Mangione, the plaintiff, has presented enough testimony at her deposition about Simbana's conduct while driving to warrant the denial of the motion by defendants Ramabel and Simbana for summary judgment on the issue of liability.

In this regard, plaintiff's request for the production of the cell phone records of defendant Simbana should be granted, as limited to all cell phone records for December 2, 2009, the date of the accident.

The most important issue in this opinion is raised by the motion to dismiss by defendant Jacobs. The plaintiff, Mangione, who previously had been involved in other accidents and personal injury lawsuits, ignored numerous court orders requiring her appearance at Independent Medical Examinations ("IMEs") in this action. The purpose of an IME is to verify a plaintiff's alleged physical injuries and to determine the nature, extent, and cause of any injuries or medical conditions observed.

Specifically, in another action, Susanna Mangione v. Metropolitan Transit Authority Bus Company and Caesar Russo, pending in this Court under index number 20671/2009, and awaiting trial, the plaintiff claimed personal injuries to her back and shoulder—the same body parts that plaintiff contends were injured by the accident in the case at bar. In the earlier action under Index Number 20671/2009, plaintiff was a passenger in a bus on November 17, 2008, that allegedly came to a sudden stop, causing her to fall down. In that case, in two separate decisions, both dated Dec. 2, 2011, and both entered on Dec. 7, 2011, Justice Allan B. Weiss denied a defense motion for summary judgment and denied Mangione's motion to consolidate that case with the instant action. The defendants in the present action contend that they have repeatedly requested the medical records from that earlier action involving Mangione as a rider on a bus, but, to date, they have not been produced, even though Mangione is being represented in both actions by the same counsel.¹

On January 31, 2011, counsel for the parties in the case at bar appeared for a preliminary conference, and the undersigned issued an order directing that the plaintiff appear for IMEs within 45 days of her examination before trial [that was held on September 14, 2011]. On October 5, 2011, counsel for all parties in the present case appeared before Justice Ritholtz for a compliance conference. Justice Ritholtz ordered that defendants designate their doctors for the IMEs within 30 days and that the plaintiff appear 30 days thereafter for the physical examination.

BMEGateway, Inc. ("BMEGateway"), a third-party vendor that arranges IME appointments for insurance companies, scheduled the plaintiff to be evaluated on October 27, 2011, at 1:00 P.M. and 1:15 P.M., at a facility in Forest Hills, in Queens County, by an orthopedic surgeon and a neurologist. The plaintiff failed to attend either of those physical examinations. They were adjourned to November 17, 2011, at 12:30 P.M. and 12:45 P.M., at the same facility, for both doctors to conduct the orthopedic and neurological IMEs.

On Nov. 14, 2011, plaintiff's counsel filed a note of issue in this action, attaching a certificate of readiness signed by Sameer Chopra, Esq., of plaintiff's counsel, falsely claiming that "Physical Examinations [were] completed." Mr. Chopra signed the certificate on Nov. 10, 2011. On Nov. 17, 2011, the plaintiff again failed to arrive for her IMEs.

In a commendable effort to avoid unnecessary motion practice, the defendants requested Justice Ritholtz again to hold a conference on the long-awaited IMEs, in addition to other items of discovery that plaintiff failed to provide. Justice Ritholtz held another conference on Jan. 25, 2012, and signed an order that, in pertinent part, stated: "Plaintiff to appear within 30 days of designation. Defendant[s] to designate IME's [sic] within 14 days. Reports to be exchanged by defendant[s] within 45 days of exam[inations]." The so-ordered stipulation was signed by all counsel, including Mr. Chopra on behalf of the plaintiff, on Jan. 25, 2012.

The defense orthopedic and neurological IMEs were then rescheduled for February 22, 2012. Plaintiff's counsel insists that it called BMEGateway...