Plew v. Snyder, 2014–0360.
| Decision Date | 27 April 2015 |
| Docket Number | No. 2014–0360.,2014–0360. |
| Citation | 36 N.Y.S.3d 49 (Table) |
| Parties | Donald PLEW, Plaintiff, v. John Allen SNYDER, Ryder Truck Rental, Inc., and Ginsberg's Institutional Foods, Inc., Defendants. |
| Court | New York Supreme Court |
John A. DeGasperis, Esq., Basch & Keegan, LLP, Kingston, Counsel for Plaintiff.
Christian J. Soller, Esq., Hodgson Russ, LLP, Albany, Counsel for Defendant.
, 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] [].) 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] [], citing De Vito v. Silvernail, 239 A.D.2d 824, 825–26, 658 N.Y.S.2d 500 [3d Dept 1997] [].) 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] []; see also
Pampris v. Egnasher, 20 A.D.3d 746, 747, 799 N.Y.S.2d 309 [3d Dept 2005] [].)
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 .1
But more importantly, Plaintiff simply does not have equal access to the underlying...
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