Smith v Christopher
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Smith v Christopher 2017 NY Slip Op 32692(U) August 3, 2017 Supreme Court, Suffolk County Docket Number: 12672/2012 Judge: William B. Rebolini Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] c Short Form Order SUPREME COURT - STATE OF NEW YORK l.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAMB.REBOLINI Justice Action No. 1 Index No.: 12672/2012 Ingrid Smith and Jeffrey Smith, Plaintiffs, -against- Attorneys [See RIDER Annexed) Leonard Christopher, Defendant. National Union Fire Ins. Co. of Pittsburgh a/s/o Ingrid Smith and David Smith, Action No. 2 Index No.: 00880/2015 Plaintiffs, Motion Sequence No.: 001; MD Motion Date: 3/ 1/ 17 Submitted: 5/3/ 17 -againstChristopher Leonard, Defendant. Kathleen Olesen and Jergen Olesen, Plaintiffs, -against- Action No. 3 Index No.: 02924/2015 Leonard Christopher, Defendant. Kemper Independence Insurance Company as Subrogee of Ingrid Smith, Plaintiffs, -againstLeonard Christopher, Defendant. Action No. 4 Index No.: 02720/2015 [* 2] Olesen v. Christopher Index No.: 02924/2015 Page2 Upon the following papers numbered 1 to 26 read upon this motion for summary judgment: Notice of Motion and supporting papers. 1 - 13; Answering Affidavits and supporting papers. 14 19; Replying Affidavits and supporting papers, 20 - 24; Other, 25 - 26; it is ORDERED that this motion by defendant, Leonard Christopher, for an order awarding summary judgment in his favor dismissing the complaint of plaintiffs. Kathleen Olesen and Jorgen Olesen, is denied. Plaintiffs commenced this action to recover damages for personal injuries allegedly sustaincu by Kathleen Olesen as a result of a motor vehicle accident that occurred on April JO. 2012. It is alleged that the accident as a result of the negligence of defendant, Leonard Christopher, when defendtmtLeonard Christopher's vehicle crossed over the median on Route 25A in Smithtown. NY and came into contact with plainti rrs vehicle. In his answer to the complaint, defendant Christopher asserted as a ninth affirmative defense that he "was confronted with an emergency situation that could not have been reasonably anticipated"' and as a tenth affirmative defense that the accident was the result ofa ··sudden medical emergency, in that the defendant suffered a sudden onset ofa medical condition which was not, and could not, have been reasonably anticipated ... " Defendant now moves for an order awarding summary judgment in his favor dismissing the complaint on the ground that the accident occurred as the result of a sudden medical emergency that could not have been reasonably anticipated. Defendant Christopher testified at a deposition that on April 8, 2012, he became ill during a meal and was taken to St. Catherine ·s Hospital, where he was seen in the emergency room, complaining of chills, headache, loss of appetite and feeling "flushed.'. According to defendant's deposition testimony, he was told that he was dehydrated. He did not pass out that day, however, bul went to see Dr. Lowell two days later, complaining or shoulder aches, loss of appetite and cold sweats. J\ccording to the medical records, he reported that he had been seen in the hospital two days earlier, and that while he foll better at the time of bis visit he was "stiol fsic] not 100%... " Jt was noted in the record that his fatigue was "pronounced." Blood work was ordered and ta.ken in a lab facility in the same building as the doctor's office, and the defendant was diagnosed with an "episode of hypotension most likely secondary to dehydration ... " Defendant proceeded to drive home from Dr. Lowell's office when the accident occurred. Defendant also tcsti fied that he has no recollection of the accident. but he recalls waking up with his head being cradled in the knees of a young man. He was taken by ambulance to I Iuntington I lospitaL where he was admitted for 4-5 days and was transferred thereafter to New York Presbyterian. MRI tests administered at Huntington l lospital reportedly revealed the existence or a schwannoma at the base of his skull, and the defendant was transforrcd to NY Presbyterian Hospital. It was defendant's testimony that his surgeon, Dr. Stieg, explained to him that ·'this tumor was pressing against blood supply to !his ] brain" which caused him to pass out. It was also defendant's testimony that he had two prior incidents in which he passed out. One was in 2009, when he called his primary care doctor, Dr. Ilillipo. after he passed out and it was explained to him that he may have become dehydrated from f1u symptoms. The second incident was in March 2011 when he passed out and was taken to St. Catherine' s Hospital, complaining of dizziness and cold sweats. The hospital record indicates that a diagnosis of viral syndrome was made. Defendant testified, however that he was told that he was dehydrated and that he should follow up with his regular doctor. Defondant testified that he saw his cardiologist, Dr. Lituchy. in J\pril 2011 , [* 3] Olesen v. Chr istopher Index No.: 02924/2015 Page 3 complaining of feeling nm down, achy and nauseous at times. The medical record of his visit with Dr. Lituchy on April 4, 2011 also indicates that Christopher reported lhat he ''had syncope or presyncope with diaphoresis and nausea" and that he had been taken to the hospilal, where he was examined and it was concluded that he was dehydrated as the result of a viral syndrome. It was defendant's testimony that before /\pril 10, 2012 , the day of the accidcnl, he had never had an x -ray, Cl\T scan, MRI or any other diagnostic test of the area of his neck and skull where the schwannoma ultimately was removed by Dr. Stieg on April 20, 2012. The common-law emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed lhat the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken arc reasonable and prudent in the emergency contexC, provided the actor has not created the emergency (Caristo v Sanzone, 96 NY2d l 72, 174, 750 NE2d 36, 726 NYS2d 334 l200 IJ, quoting Rivera v New York City Tr. Autlt., 77 NY2d 322, 327). "The operator of a vehicle who becomes involved in ao accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was un 'foreseen" (Van De Merle11 v Karpf, 147 AD3d 1008, 1008. 47 NYS3d 13412d Dept 20171. quoting Serpas v Bell, 117 AD3d 712, 713, 985 NYS2d 288 I2d Dept 20 141). Defendant must demonstrate his prima faci<! entitlement to judgment as a matter of law by coming forward with competent or expert medical evidence to establish the existence oflhc claimed medical emergency and its unforeseeable nature (see Pitt v Mroz, 146 AD3d 9 13, 45 NYS3d 206 f2d Dept 2017]). In support of his application for summary judgment, defendant Christopher submitted, inter alia, the affidavit of Mark R. McLaughlin, M.D., a board-certified neurosurgeon, who reviewed the police accident report, records pcrtainjng to defendant 's medical care including the Huntington Hospital emergency room and admission records of April I 0, 2012 to April J 4, 2012, the New York Presbyterian Hospital records of April 14, 2012 to May 4, 2012, the medical records or Dr. Bruce Lowell, Dr. Phillip Stieg and Dr. Dubncr, the records of St. Catherine of Siena Hospital and the clcCcndant's deposition transcript from December l 0, 2014. In the opinion of Dr. McLaughlin, lhe scbwannoma tumor "irritated the vagus nerve causing a sudden and unpredictable drop in blood pressure, which then caused a reduction in blood flow to the brain which caused Leonard Christopher to suffer an unanticipated syncope episode immediately prior to the motor vehicle accident." The expert determined the location of the schwannoma in relation to the ld1 vagus nerve ''based upon [his! review of the radiology films and reports and the operative repo1t by Dr. Philip Steig lsicj." Fu11hermore, as there were no clinical findings noted by Dr. Lowell to indicate that Christopher was suffering from ''viral symptoms'· on the day of the accident, in the opinion of Dr. McLaughlin the episode of syncope experienced by Christopher was not related to or caused by "viral symptoms." To lhc extent that Katl1leen Olesen and .Torgen Olesen, plaintiffs in Action No . 3 under Index Number 02924/2015. have submitted their opposition to the motion under index number I.2672/2012. counsel is reminded that actions that arc joined for discovery and trial purposes remain independent actions and separate motion papers should be filed under the appropriate index num bcrs (see Mars Assoc., Jue. v New York City Educ. Co11str. Fu11d, 126 AD2d 178, 513 NYS2<l 125 11 si Dept 19871). Because both actions involve common questions of fact and law, however, no party will suffer prejudice of a substantial right if the procedural irregularity is disregarded (see C PLR 200 I). Accordingly, this Court wil I entertain plaintiffs· opposition as it relates to both actions. [* 4] Olesen v. Christopher Index No.: 02924/2015 Page -t Plaintifl.:; urge the Court to disregard Dr. McLaughlin's aflidavit on numerous grounds, including that it was not accompanied by a certilicatc of conformi ty, as required under CPLR 2309 (c). Such defect is not fotaL however, as it was rectified in defendant's reply papers and no substantial right of the plaintiffs has been prejudiced (see Bank ofNew York Me/1011 v Vyta/i11gam, I 44 AD3d I 070. 42 NYS3d 274 l2d Dept 2016J). ln opposition to the defendant's application for summary judgment, plainti !Ts submitted the affidavit of Dr. Anthony Chimco, a board-certified neurosurgeon, who noted that defendant' s medical history shows ''multiple instances or syncope and collapse while experiencing symptoms from a virus and/or upper respiratory infection" before the underlying motor vehicle accident. In addition, the medical records or Dr. Lowell relating to defendant's visit on the day of the accident indicate that he presented with fatigue, malaise and a cough, symptoms that, in the expert's opinion, arc associated with a virus. In his opinion, the cause of the defendant's syncope on the day of the accident ..was due to symptoms from a virus and/or upper respiratory infection and his dehydration." It is also Dr. Chiurco' s stated opinion. based on his review or the MRI films and diagnostic test reports contained in the hospi tal record, the anesthesia record for the s urgical removal of the schwannoma ..does not support the allegation that the schwannoma tumor caused a compression on the vagus nerve". nor is there any mention in the operative reports or radiological studies of the vagus nerve being compressed or irritated by the schwannoma. fn reply, de fondant argues, with the support of the additional aflidavit Or. McLaughlin, that the medical records of defendant's visit with Dr. Lowell just prior lo the accident do not note clinical findings that would be consistent with an upper respiratory infection. [tis also argued that plaintiffs' expe11 fails to identify a clinical condition that would cause an episode of syncope or the mechanism that would trigger a syncopal episode. or or The conflicting expert opinions raise triable issues or fact as lo the cause defondanl 's syncopal episode as wel I as to whether the emergency situation was foreseeable (see [(arl v Terbush, 63 /\.D3d 13 59, 881 N YS2d 207 f3d Dept 2009); see ulso Ficorilli v Thomsen, 262 AD2d 602, 692 NYS2d 673 l2d Dept 19991). Such issues of fact require a trial (see McGi1111 v New York City Tra11sitA11t'1., 240 AD2<l 378, 658 NYS2d 121 l2d Dept 1997]). il~fkt~u6&6L_,_ Dated: HON. WILLIAM B. IU:BOLINI, .J.S.C. _ _ _ FI NAL DlSPOSITION _ _.X....___ NON-FINAL DISPOSITION [* 5] RIDER Attorney for Plaintiffs Ingrid Smith and Jeffrey Smith: (Action No. 1) Louis GrandellL Es4. 90 Broad Street, l S'h Floor New York. Y 10004 Attorney for Plaintiff National Union Fire Insurance Compuny or Pittsburgh as Subrogcc of Ingrid Smith and David Smith: (Action No. 2) Wenig & Wenig 150 Broadway, Suite 911 New York. NY I 0038 /\Horney for Plaintiffs Kathleen Olesen and Jorgen Olesen: (Action No. 3) Louis Grandclli. Esq. 90 Broad Street. 15 111 Floor New York, NY 10004 Attorney l<.)r Plainliff Kemper Independence Insurance Companv as Subrogee of Ingrid Smilh: (Action No. 4) Gottlieb Ostrager. LLP 300 Wheeler Road. Suite 204 • tauppaugc. NY 11788 Attorney for Defendant I,conarcJ Christopher: (Actio n No. t and Action No. 2 and Action No. 3 and Action No. 4) Montfort. Healy. McGuire. Esqs. 840 Franklin /\venue. P.O. Box 7677 Garden City, NY 11530 Clerk of the Court
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