Qin Rui Liang v New York City Tr. Auth.
Annotate this CaseDecided on July 31, 2013
Supreme Court, Kings County
Qin Rui Liang and ZHOHG KENG CHEN, Plaintiffs,
against
New York City Transit Authority, TRANSCARE NEW YORK, INC. d/b/a TC PARATRANSIT and WAYNE E. IVORY, Defendants.
14572/10
Plaintiffs' Attorney: A. Paul Bogaty, Esq., 470 Park Avenue South, 12th fl. South, New York, NY 10016
Defendants' Attorney: Eric Z. Leiter, Esq., Zaklukiewicz, Puzo & Morrissey, LLP, 2701 Sunrise Hwy., Ste. 2, P.O. Box 389, Islip Terrace, NY 11752
David I. Schmidt, J.
Defendants move to dismiss the complaint pursuant to CPLR 3212. Besides opposing the motion, plaintiffs cross-move for judgment in their favor on the complaint. This is an action to recover damages for personal injuries resulting from the defendants' alleged negligence in operating a motor vehicle.
For the following reasons, defendants' motion and plaintiffs' cross motion, are denied.
I.Background
According to his deposition testimony (see affirmation of Eric Z. Leiter, dated March 27, 2013 [Leiter aff.], Ex. H), defendant Wayne E. Ivory (Ivory) was operating an Access-A-Ride motor vehicle on July 29, 2009.[FN1] At some point, he was stopped at a red light at the intersection of Fort Hamilton Parkway and 60th Street. The vehicle was in drive and Ivory's foot was on the brake when, without any prior warning, he fell unconscious. When he regained consciousness, he heard screams coming from his passenger and a honking horn. At that point, Ivory saw that his vehicle had drifted into the direction of a pedestrian crossing the street in the crosswalk. Ivory applied his brakes at the same time his vehicle struck plaintiff Qin Rui Liang. Ivory testified that prior to the accident he had no indication that he might pass out. In addition, the night before the accident he slept for seven and a half hours and he did not feel tired before the [*2]accident.
After the accident, Ivory underwent a mandatory drug and alcohol screening that proved negative for those substances. At the advice of his employer, Ivory sought medical attention at Kings County Hospital's emergency room the following day. Over the course of several visits, Ivory underwent a battery of tests including two sleep studies. A discharge summary from Kings County Hospital indicates that Ivory was given a diagnosis, of "Syncope and collapse."[FN2] See Leiter aff., Ex. K (annexing only the first page of a 4-page summary).
In support of the instant motion, defendants, stressing the sudden and unexpected onset of Ivory's condition, contend that they are not chargeable with negligence, as a matter of law, because the accident was entirely attributable to Ivory's first-time episode of syncope.
II.Discussion
To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).
Defendants argue that they have established a prima facie case for judgment in their favor by submitting evidence in the form of the discharge summary and Ivory's deposition testimony, conclusively demonstrating that the accident was the result of the sudden and unforeseeable onset of a medical condition and not the result of Ivory's negligence.
In opposition, plaintiffs contend that the factual and medical records relied on by defendants do not corroborate, and indeed, refute, Ivory's claim that he suffered an unforeseeable medical emergency. Plaintiffs assert that evidence supports the conclusion that Ivory fell asleep at the wheel, creating a presumption of negligence that, on this record, has not been overcome.
As an initial matter, plaintiffs note that the diagnosis of syncope on Ivory's first visit to the emergency room was merely a working diagnosis based on Ivory's statement to hospital personnel that he had a "blackout" while driving, and that the disposition for that visit indicates that Ivory "walked out during evaluation." See affirmation of A. Paul Bogarty, dated May 20, 2013 (Bogarty aff.), Ex. A. Plaintiffs also contend that Ivory's second visit to the emergency room and diagnosis of syncope was, again, a working diagnosis until he was admitted and could be properly evaluated.
To bolster their contention that Ivory (negligently) fell asleep at the wheel, plaintiffs point to the complete discharge summary, of which only the first page was annexed by defendants to [*3]their motion papers. Significantly, the discharging physician, on the third page of the summary, states that: "[u]pon additional questioning it has been discerned that this episode is likely secondary to excessive daytime sleepiness/decreased sleep latency. Sleep apnea is one likely etiology, we recommend complete outpatient work-up . . . [patient] is not medically cleared to operate any motor vehicle equipment." Bogarty aff., Ex. C. Plaintiffs further note that while the admitting diagnosis may have been syncope, the principal diagnosis at the time of discharge was "unspecified sleep apnea," as reflected by the coding on the first two pages of Ivory's medical chart. Id. According to plaintiffs, this diagnosis is additionally supported by the attending physician's notes, taken during Ivory's admission, that Ivory "may be sleep deprived because of sleep apnea disorder" and that "[i]t is possible that he felt (sic) asleep and hit a pedestrian." Id. Plaintiffs emphasize that the results of the subsequent sleep study showed that Ivory was found to have "severe obstructive sleep apnea." Id., Ex. D.
Plaintiffs also argue that Ivory's medical record demonstrates that he was aware, prior to the date of the accident, that he suffered from some kind of sleeping problem and was at risk of falling asleep while driving. In this regard, the attending physician notes referred to in the previous paragraph incorporates a claim made by Ivory that "he falls asleep easily." In addition, in a pre-sleep study questionnaire, dated August 14, 2009 (less than 2 months after the accident), Ivory acknowledged that he had been having sleeping problems for at least three years prior to the accident. Id. Another section of the questionnaire, designated for a patient's bed partner, asks whether the patient has been observed falling asleep during day or evening activities or in a dangerous situation. Id. The box is checked "yes" and Ivory is described as "sitting talking to a person or on the computer and drift off to sleep right in the middle of talking." Id.
In conclusion, the evidence submitted by both plaintiffs and defendants (including on reply) as to whether or not the accident was the result of a sudden and unforeseeable medical emergency, raises triable and material issues of fact, precluding the court from granting the relief defendants seek. See Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732 (2d Dept 2011) ("On a motion for summary judgment . . . [a]ny conflict in the testimony or evidence presented merely raise[s] an issue of fact") (citation and inner quotation marks omitted).
Plaintiffs' cross motion for summary judgment must be denied as well. The court has already concluded that the evidence in the record raises triable issues of fact as to whether the cause of the accident was the result of negligence or was the result of a sudden onset of a previously unknown medical condition.
Accordingly, it is
ORDERED that defendants' motion for summary judgment in their favor, is denied; and it is further
ORDERED that plaintiffs' cross motion for summary judgment in their favor, is denied.
Dated: July 31, 2013
ENTER:
______________________J.S.C.
Footnotes
Footnote 1: At the time of the accident, Ivory was an employee of defendant Transcare New York, Inc. d/b/a TC Paratransit to whom the vehicle was registered. Title to the vehicle was in the name of defendant New York City Transit Authority.
Footnote 2: According to defendant, syncope is medically defined as a temporary loss of consciousness caused by a temporary deficiency of blood supply to the brain and is characterized by rapid onset, short duration (5-20 seconds) and spontaneous complete recovery. See Leiter aff., ¶ 24 (citing sources).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
