Santiago v All County Amusements, Inc.
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Santiago v All County Amusements, Inc. 2012 NY Slip Op 30488(U) January 27, 2012 Sup Ct, Nassau County Docket Number: 21430/09 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ...................... ................. ........ ................................ ........ .... [* 1] c/ )J SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIALIIAS, PART 3 NASSAU COUNTY JOSEPH SANTIAGO, Plaintiff, -against- MOTION SEQ. NO. : 001 10/7/11 MOTION DATE: ALL COUNTY AMUSEMENTS, INC., AND KURT BAUMBASEN, INDEX NO. : 21430/09 Defendants. The following papers having been read on the motion (numbered 1- 4): Notice of Motion................................................................................. ..... Affrma tio n in Op position....... ................. ..................... ............. Reply Affirma tio n.... Kur Baumbush s/ha Motion by defendants All County Amusements , Inc. and 3212 granting it summary judgment Baumbasen for an order pursuant to dismissing the complaint against them is determined as follows. There is an action to recover damages for personal injuries allegedly sustained by CPLR , 2008. The accident occured on plaintiff in a motor vehicle accident on October 19 Sunrise Highway atlor near its nearest intersection with Oakland Avenue in Wantagh, submitted to a New York. After the accident, a police officer arived and plaintiff breathalyzer test, which he passed. s car It is undisputed that plaintiff, an unlicensed driver, was driving his mother when the front portion of his vehicle came into contact with the passenger side of defendant' s vehicle and that plaintiff declined medical attention except for being briefly seven days later, on examined in the back of an ambulance. It is furter undisputed that October 26, 2008, plaintiff first sought medical attention at New Island Hospital Emergency Deparment , and he was thereafter admitted to Nassau University Medical Center on October 27, 2008 where he remained until December 22, 2008. The police accident report states as follows: Vehicle #1 was in collsion with Vehicle #2. Vehicle #2 was in [* 2] the process of completing a legal U-tu when Vehicle #1 failed to allow the intersection to clear prior to entering such. Vehicle #2 removed from scene by operator. Operator refused medical aid at scene. " Defendants move for summary judgment dismissing the complaint on the grounds that the evidence shows that plaintiff s own failure to yield to traffic with right-of-way is negligent as a matter of law; and plaintiff canot prove the injures claimed were caused by the collsion rather than by his own culpable conduct in failng to seek timely medical attention. In support thereof, defendants rely upon the following: the pleadings; the deposition testimony of non- par witness , Rosemarie Santiago, plaintiffs mother; non- par witness Police Officer Thomas Judge; a MY- I04A Police Accident Report photographs of the tractor Mr. Baumbush was driving and thee photographs of intersection; affdavit of Kur Baumbush; and affidavit of Marc J. Shapiro, M. In his affidavit , Dr. Shapiro states , in pertinent part, as follows: Mr. Santiago was involved in a traumatic automobile impact on October 19, 2008. The first medical care he sought was at New Island Hospital on October 26, 2008. At the accident scene Mr. Santiago indicated that he felt satisfactory, therefore declined hospital evaluation. By the time he signed into New Island Hospital his situation had changed dramatically. X-ray studies of the pelvis and chest revealed no fractures or lesions but because of Mr. Santiago s complex medical past with having had four cardiac stents and an abnormal EKG, among other conditions, he was transferred from New Island Hospital to Nassau County Medical Center for higher level care. 15, lists the injuries Mr. Santiago Plaintiffs Bil of attributes to the collsion. Plaintiffs list is taken from the Nassau County Medical Center s records, however almost all of the Particulars, conditions/injuries identified were due to complications from his delay in seeking timely treatment and some were pre-existing. During the time Mr. Santiago remained at home without medical the [* 3] evaluation or treatment , he became septic, which was due to the delay in seeking treatment. He developed several infectious conditions (all identified in the plaintiffs Bil of Pariculars); mediastinitis, plumonary empyema, severe sepsis , respiratory failure open chest wall defect, anterior mediastinitis, septic shock. It is my opinion within a reasonable degree of medical certainty that these conditions were due to the delay in seeking treatment and would not have occurred but for Mr. Santiago s poor choice in foregoing evaluation and treatment. Mr. Santiago s Bil of Pariculars also identifies complications that in my opinion are secondary to the infectious state he developed from his delay; open wound of the chest and the need for open chest surgery and are due to having been left untreated and are therefore secondar to the delay in treatment. It is my opinion within a reasonable degree of medical certainty that the very most Mr. Santiago has recovered and that my findings of a are due to the chest wall deformity and limitation of his right delay because a thoractomy and subsequent chest wall deformity limitation would not have needed to be performed, and his right is related to the surgery undertaken in the chest, all of which was avoidable had timely care been accepted by Mr. Santiago. ar ar In opposition to the motion , plaintiff asserts that issues of fact exist that preclude the granting of sumar judgment including "whether defendant was negligent in executing a u- turn at a location where the road was not large enough to accommodate his vehicle. . . " (~24 of Mr. Pomara s Affirmation). Plaintiff further asserts that defendant was driving an 18 wheel tractor trailer with an amusement park ride on the trailer whereas defendant contends that he was driving a 10 wheel tractor (without trailer) when he was strck broadside into the passenger side of the tractor. In support thereof, plaintiff submit his own affidavit and attacks the affidavits submitted by Mr. Baumbush and Dr. Shapiro and the deposition testimony of Police [* 4] Officer Judge. In sum , plaintiff argues that since there are conflcting versions of how this accident happened based on the affidavit of Mr. Santiago, the affidavit and deposition of Mr. Baumbush and the deposition of Police Officer Judge , credibilty issues exist (Id. which need to be assessed by a jury. at' 22). On a motion for sumar judgment, it is incumbent upon the movant to make a showing of entitlement to judgment as a matter of law , tendering sufficient Prospect City of New York 49 NY2d 557 562 Hosp. 68 NY2d 320 (1980)). The failure to make that showing requires the denial of the motion regardless of 17 AD3d 326 (2 Dept prima facie (Alvarez evidence to demonstrate the absence of any material issues of fact 324 (1986); Zuckerman Manning, (Mastrangelo the sufficiency of the opposing papers 13 AD3d 511 (2 Dept 2004)). (see Kriz Issue finding, as opposed to issue determination is the key to sumar 2005); Roberts Carl Fenichel Community Servs., Inc. judgment Schum 75 NY2d 25 (1989)). Indeed ( e )ven the color of a triable issue forecloses the 191 AD2d 488, 489 (2 Dept 1993)). Moreover Robbins, remedy (Rudnitsky Schmieder (Ugarriza sumar judgment is often inappropriate in negligence actions 46 NY2d 471 475 (1979)), even where the relevant facts are uncontested, since the issue of whether the defendant or the plaintiff acted reasonably under the circumstances is 35 NY2d 361, 364 (1974); (Andre generally a question for jury determination Davis herein Pomeroy, 227 AD2d 514 (2 Dept 1996)). Federated Department Stores, Inc., Viewing the evidence in the light most favorable to the non-moving par, plaintiff 272 AD2d 583 83 AD3d 18 (2 18 AD3d 625 (2 Dept (Stukas Dept 2000); Streiter, Makaj Dept 2011); Judice DeAngelo, Metropolitan Transportation Authority, 2005)), we conclude that issues of fact exist here which preclude summar judgment. Accordingly, the motion is denied. This constitutes the Order of the Cour. Dated: 7; :(0/'2 ENTERED FEB 1 7 2012 NAAU COUNTY COUNT CLERK'S OFFICE
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