Sardar v. Park Ambulance Serv. Inc.
| Decision Date | 23 May 2017 |
| Citation | 56 Misc.3d 756,53 N.Y.S.3d 515 |
| Parties | Sawar SARDAR, Plaintiff v. PARK AMBULANCE SERVICE INC., d/b/a American Medical Response, Inc. and Lesly Madera, Defendants. |
| Court | New York Supreme Court |
Stacy R. Klozow, Esq., Goidel & Siegel, LLP, New York, Attorney for Plaintiff.
Suzanne Billig, Esq., Billig Law, P.C., New York, Attorney for Defendants.
On August 29, 2011, Sardar commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and complaint with the Kings County Clerk's office (KCCO). The defendants joined issue by a joint verified answer filed on September 13, 2011. A note of issue was filed on August 15, 2016.
The complaint, bill of particulars and Sardar's deposition transcript allege in pertinent part that on August 27, 2010 at approximately 10:45 p.m. the parties were in an automobile accident (hereinafter the subject accident) at the intersection of Coney Island Avenue and Avenue P in Kings County. At that time and place, Sardar was driving a 2003 Lincoln Town Car heading south on Coney Island Avenue towards Avenue P. Madera was driving an ambulance owned by defendant Park Ambulance westbound on Avenue P. Avenue P and Coney Island Avenue were both controlled by traffic control devices at that intersection. It is undisputed that Sardar had the green light in his favor when he entered the intersection immediately before the accident.
Generally, [i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Tabak v. Shaw Indus., Inc., 149 A.D.3d 1132, 53 N.Y.S.3d 154 [2nd Dept.2017]citing Morris v. Queens Long Is. Med. Group, P.C., 49 A.D.3d 827, 828, 854 N.Y.S.2d 222 [2nd Dept.2008] ; see CPLR 3025[b] ). Where, however, the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discreet, circumspect, prudent, and cautious (Tabak, 149 A.D.3d 1132, 53 N.Y.S.3d 154 [2nd Dept.2017]citing Civil Serv. Empls. Assn. v. County of Nassau, 144 A.D.3d 1077, 1078, 44 N.Y.S.3d 50 [2nd Dept.2016] ). Moreover, when ... leave is sought on the eve of trial, judicial discretion should be exercised sparingly (Tabak, 149 A.D.3d 1132, 53 N.Y.S.3d 154 [2nd Dept.2017]citing Morris, 49 A.D.3d at 828, 854 N.Y.S.2d 222 ). Furthermore, where there has been an inordinate delay in seeking leave to amend to include a new injury, the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment (Green v. New York City Hous. Auth., 81 A.D.3d 890, 917 N.Y.S.2d 313 [2nd Dept.2011] Itzkowitz v. King Kullen Grocery Co., Inc., 22 A.D.3d 636, 637, 804 N.Y.S.2d 350 [2nd Dept.2005] ; Fuentes v. City of New York, 3 A.D.3d 549, 550, 771 N.Y.S.2d 178 [2nd Dept.2004] ).
In the instant matter, Sardar's seeks to amend the bill of particulars to assert an additional injury, specifically a left nasal bone fracture. In support of the application Sardar's asserts that the failure to include this injury in the bill of particulars was an oversight. He contends that the amendment would not prejudice or surprise the defendants because they had an authorization for the medical records revealing the nasal fracture back in November 2011. Furthermore, their counsel confirmed their possession of the relevant medical records at Sardar's deposition in February of 2014. Furthermore, the defendants' independent medical examination doctor stated that he relied upon those records in preparing his report.
In opposition to the motion the defendants contend that the delay in amending the bill of particulars is prejudicial and that Sardar's should not be permitted to amend based on the time delay. The defendants claim that the additional discovery would be unduly burdensome. Lastly, the defendants assert that the amendment is simply a method to defeat the summary judgment motion and reach the threshold requirement of a serious physical injury provided for in the Insurance Law § 5102(d).
Contrary to the defendants' assertions there has not been an inordinate delay as the note of issue was filed fairly recently. Furthermore, defendants claim of prejudice is one that is easily remedied by granting additional discovery. Accordingly, Sardar is granted leave to amend the bill of particulars to assert a nasal bone fracture. Sardar is directed to file the proposed amended bill of particulars with the KCCO and serve it on the defendants on or before May 26, 2017.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 N.Y.2d 72, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003] ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 [1993] ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 569 N.Y.S.2d 337, 571 N.E.2d 645 [1991] ).
(People ex rel. Spitzer v. Grasso, 50 A.D.3d 535, 544, 858 N.Y.S.2d 23 [1st Dept.2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 [2nd Dept.1990] ).
The defendants have moved to dismiss the plaintiff's complaint on the basis that he did not have a serious injury as defined in Insurance Law § 5102(d). Insurance Law § 5102(d) defines serious injury as:
[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
"A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (see Grossman v. Wright, 268 A.D.2d 79, 83, 707 N.Y.S.2d 233 [2nd Dept.2000] ). (Id. at 84, 707 N.Y.S.2d 233 ).
As discussed above, the plaintiff has been permitted to amend the bill of particulars. Accordingly, the instant motion for summary judgement based on the plaintiff's failure to sustain a serious physical injury fails to address the new injury claimed by the plaintiff. The motion is therefore denied with leave to seek the same relief after discovery has been completed in relation to the new injury.
Defendants' motion for summary judgment on the issue of liability
The defendants seeks an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint. In support of the motion, the defendants have submitted, among other things, Sardar's deposition transcript, an affidavit by Madera and an affidavit of John Rusinski (hereinafter Rusinski).
Generally, a driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (Nohs v. Diraimondo, 140 A.D.3d 1132, 35 N.Y.S.3d 209 [2nd Dept.2013]citing Mu–Jin Chen v. Cardenia, 138 A.D.3d 1126, 31 N.Y.S.3d 134 [2nd Dept.2016] ). "Moreover, a driver is negligent where he has failed to see that which through proper use of his senses he should have seen" (Nohs v. Diraimondo, 140 A.D.3d 1132, 35 N.Y.S.3d 209 [2nd Dept.2013]citing Rodriguez v. Klein, 116 A.D.3d 939, 939, 983 N.Y.S.2d 851 [2nd Dept.2014] ).
While a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, a...
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