Garcia v Weissman

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Garcia v Weissman 2018 NY Slip Op 34431(U) September 20, 2018 Supreme Court, Rockland County Docket Number: Index No. 033853/2015 Judge: Robert M. Berliner 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. FILED: ROCKLAND COUNTY CLERK 09/21/2018 05:17 PM NYSCEF DOC. NO. 118 INDEX NO. 034177/2015 RECEIVED NYSCEF: 09/21/2018 commence the statutory statutory To commence time of time period period for appeals appeals as of right (CPLR (CPLR 5513 [a]), you right raJ), you serve a copy copy are advised advised to serve of this order, with of this order, with notice notice of of entry, entry, upon upon all parties. parties. SUPREME COURT: COURT: STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY ROCKLAND COUNTY OF ROCKLAND HON. ROBERT M. BERLINER, HON. ROBERT BERLINER, J.S.C. J.S.C. ______________________________________________________ ----x ----------------------------------------------------------x BRIAN GARCIA, BRIAN GARCIA, DECISION DECISION AND AND ORDER ORDER Plaintiff, Plaintiff, ACTION ACTION I -against-againstLAWRENCE VILLAGE OF WEISSMAN, VILLAGE LAWRENCE A. WEISSMAN, SPRING VALLEY, SPRING VALLEY POLICE POLICE SPRING VALLEY, SPRING VALLEY DEPARTMENT CHARLES, as DEPARTMENT and and RONELL RONELL CHARLES, Police Officer of of Spring Spring Valley Police Officer Valley Police Police Department, Depaiiment, Index 033853/2015 Index No. No. 033853/2015 Motion Sequence Sequence #3 Motion Defendants. Defendants. ______________________________________________________ ----x ----------------------------------------------------------x ACTION 2 ACTION RONELL CHARLES, CHARLES, RONELL Plaintiff, Plaintiff, Index No. Index No. 034177/2015 034177/2015 -against-againstLAWRENCE WEISSMAN , LA WREN CE A. WEISSMAN ' Defendant. Defendant. ----------------------------------------------------------x ----------------------------------------------------------x BRIAN BULLUCK , BRIAN BULLUCK, ..Plaintiff, Plaintiff, ACTION ACTION 3 -against-against- Index No. 033742/2017 033742/2017 Index LAWRENCE WEISSMAN and LA WREN CE A. WEISSMAN "JOHN DOE" "JOHN DOE" , ' Defendants. Defendants. .J '·' ------------------------------------------------------------------x -------------------------------------------------x 11 [* 1] 1 of 4 FILED: ROCKLAND COUNTY CLERK 09/21/2018 05:17 PM NYSCEF DOC. NO. 118 INDEX NO. 034177/2015 RECEIVED NYSCEF: 09/21/2018 following papers, I to 4, were were read connection with with the the motion submitted by The following papers, numbered numbered 1 read in connection motion submitted Ronell Charles, Action 2, seeking judgment pursuant pursuant to CPLR Ronell Charles, as Plaintiff Plaintiff in Action seeking summary summary judgment CPLR §3212 93212 against Defendant Defendant Lawrence Lawrence A. Weissmann (hereinafter "Weissmann"): "Weissmann"): Weissmann (hereinafter against Notice of Motion/ Motion! Affirmation Affirmation in Support/Exhibits(A-K) SupportJExhibits(A-K) ................................................ 1-2 Notice of ,. Affirmation Affirmation in Opposition(Conklin)/Exhibits(A-D) 3 Opposition(Conklin)lExhibits(A-D) ............................................3 Affirmation in Reply/Exhibits(A-G) ReplylExhibits( A_G)................................................................................... -44 Affirmation Upon papers, it is ORDERED that this motion is disposed Upon the foregoing foregoing papers, ORDERED that this motion disposed of of as follows: follows: These actions actions arise arise from a motor vehicle accident accident that that occurred occurred on August "146 These motor vehicle August 29, 2014 2014 at "146 North Main Street, Street, Spring Spring Valley, Valley, New The accident accident occurred occurred when Officer Ronell Charles North Main New York." York." The when Officer Renell Charles (hereinafter "Charles") "Charles") was dispatched to an emergency emergency and was was traveling southbound on North (hereinafter was dispatched traveling southbound North Main Street Street with lights and and sirens sirens activated. activated. Allegedly, Allegedly, Weissmann attempted to tum left in front front Main with lights Weissmann attempted tum left of vehicle thereby him to tum tum his vehicle quickly, passing passing completely completely into of the Officer's Officer's vehicle thereby causing causing him vehicle quickly, the northbound vehicle. In doing the Officer's Officer's vehicle northbound land land to avoid avoid contact contact with with Weissmann's Weissmann's vehicle. doing so, the vehicle struck the curb curb and became airborne. The Officer's vehicle vehicle made made contact contact with with the vehicle struck became airborne. The Officer's vehicle in which which Brian passenger in. The The owner Brian Bulluck, Brian Garcia Garcia [hereinafter [hereinafter "Garcia"] "Garcia"] was a passenger owner of of the vehicle, vehicle, Brian Bulluck, was pumping the time time of of the accident. accident. Action I, Index 03385312015 [hereinafter [hereinafter "Action "Action Action 1, Index No. 033853/2015 was pumping gas gas at the I"], commenced by Garcia Garcia against against the Village Village Defendants and Weissmann. Weissmann. Garcia Garcia asserts asserts a 1 "], was commenced Defendants and cause of of action action sounding sounding in negligence negligence and seeks seeks to recover damages for economic economic loss and cause recover damages injuries suffered suffered due to the accident. accident. Action Action 2, Index Index No. 034177/2015 034177/2015 (hereinafter [hereinafter "Action "Action 2"], 2"], injuries commenced by Ronell Charles, individually, individually, against against Weissmann. Ronell Charles, Weissmann. Action Action 3, Index Index No. was commenced 033742/2017 [hereinafter [hereinafter "Action "Action 3"], 3"], was commenced commenced by Brian Brian Bulluck Bulluck against against Weissmann. Weissmann. In 033742/2017 Action 2, Charles Charles asserts asserts causes causes of of action action sounding sounding in negligence negligence and and seeks seeks to recover recover damages damages Action for personal suffered due to the accident. accident. personal injuries injuries suffered The Court judgment application Decision and Court denied denied Weissmann's Weissmann's summary summary judgment application in a Decision and Order Order Inddoing . so, th · · that dated 27 , 2018 dated March March 27, 2018.· In thee C Court herein, triable issue issue of offact omg ourt £found, ound, as pertinent pertment herem, that a triable fact exists exists as to whether whether Weissmann's Weissmann's alleged alleged negligence negligence and and failure failure to yield yield to an emergency emergency vehicle vehicle thee proximate cause of of the the accident. accident. Charles Charles submitted submitted Weissmann's medical records records at a later later was th proximate cause Weissmann's medical Court explicitly explicitly declined declined to read submissions submissions received after the return date of of earlier earlier date, but but the Court received after return date applications applications Charles's instant instant application application is based largely on these medical records, were not these medical records, which which were Charles's based largely available at the time time of of the earlier earlier applications applications ·. He submits submits that that Weissmann I'1gent as a available Weissmann w as neg neg 1· was 2 [* 2] 2 of 4 FILED: ROCKLAND COUNTY CLERK 09/21/2018 05:17 PM NYSCEF DOC. NO. 118 INDEX NO. 034177/2015 RECEIVED NYSCEF: 09/21/2018 matter of of law law for driving driving while while visually visually impaired, impaired, which which entitles entitles him him to summary summary judgment matter judgment as to liability. Charles Charles invites invites the the Court Court to "search "search the record" record" and and offers offers Weissmann's Weissmann's medical medical records records liability. corresponding to treatment treatment with with Louis Louis M. Maisel, Maisel, M.D. M.D. of of Rockland Rockland Retina Retina in New City, New New corresponding New City, bottom, Charles Charles argues argues that that Weissmann Weissmann conceded conceded at his deposition deposition that that he has suffered suffered York. At bottom, diabetic retinopathy retinopathy for some some time time and the medical medical records records submitted submitted establish establish that that he was was from diabetic suffering from this this condition condition on the date date of of accident. accident. Furthermore, Furthermore, Charles Charles posits that posits that suffering Weissmann's Weissmann's medical medical records, records, medical medical history history and deposition deposition testimony testimony collectively collectively establish establish that that negligent as a matter matter of of law and supports supports an award award of of summary summary judgment he was negligent judgment in his favor. opposition, Weissmann Weissmann argues argues that that Charles's Charles's motion motion is untimely, untimely, which which is contrary contrary to In opposition, Court's directives directives at an April April 12, 2018 2018 conference. conference. As such, such, the the Court Court will will dispose dispose of of the the Court's motion on its merits. merits. As to Weissmann's Weissmann's ability ability to drive, drive, Dr. Maisel Maisel and and Weissmann Weissmann submit submit motion affidavits affidavits attesting attesting to Weissmann Weissmann being being examined examined every every six weeks weeks for his vision vision issues. issues. Moreover, Moreover, Weisssmann states states that that his diagnoses diagnoses do not not prevent prevent him him from driving driving and and that that he has had had Weisssmann submitted to annual annual tests tests to drive drive administered administered by Lighthouse Lighthouse Guild. Guild. submitted reply, Charles Charles questions questions the timing timing and and manner manner in which which the information information Weissmann Weissmann In reply, relies upon upon was received received and communicated communicated with with them, them, including including Dr. Maisel's Maisel's inability inability to locate locate relies Weissmann's medical medical records records for years years 2011 through through 2014. 2014. Weissmann's "As we have have stated stated frequently, frequently, the proponent proponent of of a summary summary judgment motion must must make make a "As judgment motion prima facie showing showing of of entitlement entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence judgment as a matter prima demonstrate the the absence absence of of any any material material issues issues of offact. Failure to make make such such prima showing fact. Failure prima facie showing to demonstrate requires a denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the opposing opposing papers. Once this papers. Once requires showing has been been made, made, however, however, the burden burden shifts shifts to the party party opposing opposing the the motion motion for summary summary showing judgment produce evidentiary evidentiary proof proof in admissible admissible form sufficient sufficient to establish establish the existence existence of of judgment to produce materia! issues issues of of fact which which require require a trial of of the action." action." Alvarez Prospect Hasp., 320, material Alvarez v Prospect Hosp., 68 NY2d NY2d 320, 986][internal citations citations omitted]. omitted]. 324 [[I1986][intemal The Court Court declines declines to elevate elevate Weissmann's Weissmann's mere mere diagnoses diagnoses and treatment treatment for various various The vision issues issues to something something akin akin to negligence negligence per the same same diagnoses diagnoses did not render render him vision per se, as the ineligible to hold hold a driver's driver's license. license. Although Although Charles's Charles's counsel counsel expresses expresses shock shock that that someone someone ineligible with Weissmann's Weissmann's conditions conditions continues continues to operate operate a motor motor vehicle, vehicle, the the fact remains remains that the Department Department of of Motor Motor Vehicles Vehicles or other other policymakers have not not expressed expressed that that same same sentiment sentiment by policymakers have making privileges. Although making such such conditions conditions a categorical categorical bar bar to maintaining maintaining driving driving privileges. Although Charles Charles 3 [* 3] 3 of 4 FILED: ROCKLAND COUNTY CLERK 09/21/2018 05:17 PM NYSCEF DOC. NO. 118 INDEX NO. 034177/2015 RECEIVED NYSCEF: 09/21/2018 submits that that based diagnoses, treatment, medical submits based upon upon the diagnoses, treatment, and history history reflected reflected in Weissmann's Weissmann's medical history, one can assume assume only only that that the conditions present at the the time time of of the the August August 24, 2014 history, conditions were were present 2014 accident and caused caused the accident, accident, this necessary assumption precludes finding of of negligence negligence as accident necessary assumption precludes a finding of law. Accordingly, Accordingly, the Court finds that that Charles Charles has established prima a matter matter of Court finds has not not established prima facie entitlement to summary summary judgment liability and and the Court Court need need not not delve delve into into the sufficiency sufficiency entitlement judgment as to liability of the opposition opposition papers. denied in its entirety. entirety. of papers. As such, his motion motion is denied The foregoing constitutes the Decision Decision and The foregoing constitutes and Order Order of of the Court. Court. ENTER ENTER Dated: New New City, New New York York September 20,2018 September 20, 2018 4#i1t(:g~ ROBERT M. BERLINER, J.S.C. ON. ROBERT BERLINER, J.S.C. To: Counsel of of Record Record via via NYSCEF NYSCEF Counsel 4 [* 4] 4 of 4

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