Pena v Women's Outreach Network, Inc.
Annotate this CaseDecided on January 7, 2005
Supreme Court, Bronx County
Luisa Pena, Plaintiff,
against
Women's Outreach Network, Inc., and "JOHN DOE", real name unknown and intended to be an employee of Women's Outreach Network, Inc., Defendants.
26078/00
Appearances of Counsel
Plaintiff's Counsel: Wilmer A. Rodriguez-Nunci, Esq.
Wilbert Ramos, Esq.
4 Gordon Terrace
Warwick, NY 10990
845-988-0915
Defense Counsel:Faust Goetz Schenker & Blee
2 Rector Street
20th Floor
New York, NY 10006
212-363-6900
Patricia Anne Williams, J.
Defendant Women's Outreach Network, Inc. and "John Doe", real name
unknown and intended to be an employee of Women' Outreach Network, Inc. (collectively
"Women's Outreach") moves pursuant to Section 3212 of the Civil Practice Law and Rules (the
"CPLR") for an Order granting it summary judgment and dismissing the complaint against them
on the grounds that the plaintiff cannot make out a prima facie case of negligence against
it and has not raised an issue of fact with respect to the existence of a dangerous condition at the
van where plaintiff was injured or notice to Women's Outreach of the said condition. Plaintiff
opposes the motion as being untimely and on the merits. For the reasons set forth hereinafter, the
defendant's motion is granted in all respects.
FACTUAL HISTORY
Women's Outreach is a New York corporation which provides various services for [*2]women including, inter alia, the provision of mammograms. For the purpose of providing the said mammograms to a wide clientele, sometime in 1998 or 1997, Women's Outreach purchased a used RV which was then converted into a medical van to provide services on a mobile basis. The van had two sets of stairs, one used for entrance and the one in the rear for exit. The rear exit stairs consist of three internal stairs (from top to bottom) and two metal steps which slide out from beneath the van by means of a lever. There are handrails on the inside of the exit door and a metal handrail on the outside of the van on the opposite side of the exit. There are no handrails on the inside of the van by the steps located there. On October 9, 1999, the van was parked in the parking lot of St. Joan of Arc Church, located at Stratford Avenue and 174th Street in Bronx County. The two metal steps were extruded into place and the door was open.
Sometime between 11:00 and 11:15 A.M. of October 9, 1999 plaintiff entered the van for the purposes of obtaining a mammogram. Subsequent to the completion of this diagnostic test plaintiff proceeded to exit the van. According to her deposition testimony, on her way out of the van plaintiff tripped on the third step down, leaving her right shoe "stuck on the stairs," and fell. Plaintiff observed nothing on the stairs either before or after her fall. The fall resulted in claimed injuries consisting of a fracture of the right foot requiring open reduction with internal fixation, scarring, right ankle and foot internal derangement, post-traumatic right knee synovitis with retropatellar effusion, post-traumatic right ankle synovitis with ligamentous sprain, metatarsal fracture, limited range of motion of the right knee, ankle and foot and post-traumatic muscular spasms [See plaintiff's Verified Bill of Particulars and Supplemental Bill of Particulars]. According to plaintiff's deposition testimony, she broke her foot on the edge of the stairs when her shoe got stuck on it and as she fell.
PROCEDURAL HISTORY
Plaintiff commenced this action by the filing of her Summons and Verified Complaint with the County Clerk of Bronx County on November 24, 2000. Issue was joined by the service of defendant Women's Outreach's Verified Answer on July 5, 2001. Plaintiff served her Verified Bill of Particulars on or about January 31, 2002 and a Verified Supplemental Bill of Particulars on or about March 1, 2004. Plaintiff was deposed on September 30, 2002 and two representatives of defendant Women's Outreach who were working on the date of plaintiff's accident were deposed on November 13, 2002; Kathy Adamczyk, the mammographer and certified breast examiner, and Georgina Cintron, the driver of the van who also handled the paperwork.
On October 13, 2003, plaintiff filed a Note of Issue and Certificate of Readiness. That Certificate recited that all medical reports had been exchanged and all discovery completed. Thereafter, on October 28, 2003, defendant Women's Outreach moved to strike the Note of Issue and Certificate on the grounds that discovery was not yet complete. On December 17, 2003, the Honorable Justice Nelson Roman granted the motion unless plaintiff forwarded all outstanding discovery to defendant Women's Outreach within ninety (90) days. As indicated supra further discovery continued with the service of plaintiff's Verified Supplemental Bill of Particulars on or about March 1, 2004. Shortly thereafter, at a pre-trial conference, an additional deposition of plaintiff was granted based upon the fact of the Supplemental Bill of Particulars and the fact that plaintiff underwent a second surgery in 2002. That deposition was held on May 7, 2004. As of June 4, 2004, defendant Women's Outreach was still seeking discovery, including inter alia, [*3]authorizations for medical treatment rendered to plaintiff subsequent to October 13, 1999.
DISCUSSION
A] The Timeliness of the Instant Motion
Plaintiff complains that the instant motion is untimely because it was not made within 120 days of the filing of her Note of Issue and Certificate of Readiness, and that Women's Outreach has failed to establish "good cause" to excuse its untimeliness in so filing. Moreover, plaintiff claims that had Women's Outreach been aggrieved by any alleged failure on plaintiff's part to comply with the December 17, 2003 Order of Justice Roman, that it could have moved to have the penalty portion of that order executed, i.e. having the Note of Issue stricken. These claims are without merit.
While plaintiff asserts that she "furnished all of the outstanding discovery demanded by the Defendant" and that none of the requested discovery dealt with the issue of liability, the fact remains that as of March 2004, plaintiff's Supplemental Bill of Particulars provided additional claims respecting that issue. This court finds no reason to hold that Women's Outreach was dilatory in making the instant motion which was filed six months later. In that six month period, there was an additional deposition of plaintiff as well as the aforementioned requests for disclosure. While plaintiff is correct that Women's Outreach did not specifically seek an extension of its time to file a motion for Summary Judgment, Women's Outreach is also correct that based upon the actions of the parties in continuing to engage in the discovery process, one might reasonably conclude that they both believed that Justice Roman's December 17, 2003 Order had self-executed and the Note of Issue had been stricken. In any event, this court finds that Women's Outreach has set forth circumstances which, under the facts of this case, establish good cause for their failure to file the instant motion by April 15, 2004 (120 days from the date of Justice Roman's Order). Accordingly, this court finds that the instant motion is not untimely and will consider it on its merits.
B] Summary Judgment
At the outset, it is axiomatic that the granting of summary judgment is an extreme form of relief that is the procedural equivalent of a trial. Therefore, such a grant is only appropriate when the evidence adduced leaves no material issue of fact unresolved. See Andre v. Pomeroy, 35 NY2d 361, 362 N.Y.S.2d 131 (1974). Thus, in order to obtain summary judgment it is necessary that the movant establish a cause of action or defense sufficient to warrant the court as a matter of law in directing judgment in his favor. Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068, 416 N.Y.S.2d 790 (1979); see Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395,162 N.Y.S.2d 498. (1957); Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 (1986). The movant must show entitlement as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact. Zuckerman v. City of New York, 49 NY2d at 562.
The defendant Women's Outreach has met their burden in this case. At her 2002 deposition, plaintiff was unable to identify any defect or other reason which would explain her fall from the steps of the stairs of defendant's van. Indeed, although she testified repeatedly that her right shoe got "stuck" on the step, that term was never explored with any specificity. No testimony elicited from either of the two women [*4]employed by Women's Outreach and present on the date of plaintiff's accident established any defect or problem with the steps of the van on that date or any other date. Accordingly, defendant Women's Outreach has met its burden on this motion.
Despite the heavy burden thus imposed upon the moving party, once that party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the opposing party, who must produce sufficient evidence to require a trial of any issue of fact. Zuckerman v. City of New York, 49 NY2d at 562. Summary judgment is not appropriate where there is any doubt as to the existence of triable and material issues of fact. Moreover, summary judgment requires that the Court engage in an exercise of issue finding rather than issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d at 404. In the instant case, plaintiff has failed to meet that burden.
Plaintiff bases her claims of negligence almost entirely on the September 21, 2004 expert affidavit of Robert L. Schwartzberg, an engineer. Pursuant to that affidavit, Mr. Schwarzberg's area of expertise includes consulting services rendered to "home and building owners, architects and prospective purchasers regarding construction, rehabilitation, renovation, maintenance, corrective work, and upgrading of systems and structures. . . . [including] the evaluation of conditions with respect to safety, code compliance and design." Mr. Schwarzberg's opinions are based entirely upon the provisions of the New York State Building Code, and the New York State Uniform Fire Prevention and Building Code. Thus, this opinion, implicitly concedes the absence of any applicable codes or regulations regarding stairways for motor vehicles such as the converted RV at issue. This absence of authority is a crucial failure of proof on the instant motion.
Mr. Schwartzberg's opinion states specifically that the New York State Building Code "provides the best source of guidance when designing, constructing and maintaining stairways within the State." This court finds no reason to find fault with this opinion. However, this court also notes that the said Code applies to buildings and not motor vehicles such as vans of varying sizes, trucks or RVs.[FN1] Indeed, there is no evidence whatsoever (and Mr. Schwarzberg does not so opine) to indicate that the stairs from which plaintiff fell were in any way altered from their original design when the conversion from RV to medical van was performed. Tellingly, Mr. Schwartzberg cites to no provisions of any local, state or federal statutes or regulations governing the construction of stairways in such vehicles. Accordingly, if this court were to find that as a matter of law, the New York State Building Code and the New York State Uniform Fire Prevention and Building Code apply to motor vehicles such as the converted RV in question, it would mean that such vehicles are by definition dangerous and hazardous. Plaintiff has offered no authority whatsoever to support such a finding and this court is not prepared to make a finding that regulations and codes governing buildings also govern motor vehicles simply because of the [*5]admitted severity of plaintiff's injury.
Based on all of the foregoing, this court finds that plaintiff has not raised an issue of material fact requiring decision by a jury. Accordingly, the motion of defendant Women's Outreach is granted in all respects and the complaint is dismissed as against them.
CONCLUSION
The foregoing constitutes the decision and order of this
Court.
DATED: JANUARY 7, 2005
_______________________
PATRICIA ANNE WILLIAMS
ACTING JUSTICE OF THE
SUPREME COURT
Footnotes
Footnote 1: While plaintiff suggests that it is
not this court's function to consider this issue since it was not raised on the initial motion, it was
plaintiff who first introduced this issue in its opposition papers. The affidavit itself is dated one
week subsequent to the filing of the instant motion. Accordingly, it is appropriate for this court to
address the legal issue of whether the expert opinion proffered is legally sufficient to raise an
issue of fact in this case.
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