Opinion
020237/09
01-09-2012
Jerome Wolkis, As Administrator of the ESTATE OF MICHAEL LEWIS WOLKIS, Deceased and JEROME WOLKIS Individually, Plaintiff, v. Michele I. Klatch and WILLIAM R. KLATCH, Defendants.
Counsel for the Plaintiffs: Law Office of Vincent D. McNamara Anthony Marino, Esq. Counsel for the Defendants: Carman, Callahan & Ingham, LLP Tracy S. Reifer, Esq.
Counsel for the Plaintiffs: Law Office of Vincent D. McNamara Anthony Marino, Esq.
Counsel for the Defendants: Carman, Callahan & Ingham, LLP Tracy S. Reifer, Esq.
Randy Sue Marber, J.
Upon the foregoing papers, this motion by the Defendants, Michele I. Klatch and William R. Klatch, seeking an order pursuant to CPLR § 3212 granting them summary judgment dismissing the complaint against them is decided as provided herein.
The Plaintiffs in this action seek to recover damages for the conscious pain and suffering and the death of the infant-Plaintiff, Michael Lewis Wolkis. He was struck by a BMW automobile owned by the Defendant, William R. Klatch and operated by his daughter, the Defendant, Michele I. Klatch, on October 31, 2008.
The defendants presently seek summary judgment dismissing the complaint.
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v. King, 10 AD3d 70, 74 (2d Dept. 2004), affd as mod., 4 NY3d 627 (2005), citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Sheppard-Mobley v. King, supra, at p. 74; Alvarez v. Prospect Hosp., supra; Winegrad v. New York Univ. Med. Ctr., supra. Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v. Prospect Hosp., supra, at p. 324. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. See, Demishick v. Community Housing Management Corp., 34 AD3d 518, 521 (2d Dept. 2006), citing Secof v. Greens Condominium, 158 AD2d 591 (2d Dept. 1990).
The Defendant, Michele Klatch, testified as follows at her Examination Before Trial:
On the day and time in question, she was traveling from her parents' house at 20 Montfort Place in Syosset to her home at 31 North Drive in Centerport. She testified that she was traveling southbound on Cold Spring Road which she described as a two lane road with one lane of travel in each direction. She testified that she believed that there was a shoulder on both sides of the road as well as woods to the right or south. She testified there were no traffic control devices in the vicinity of the accident and that the speed limit was 40 mph except for in the vicinity of Berry Hill School where it was 25 mph. Ms. Klatch testified that she was traveling at 30-35 mph and that shortly before the accident, the road curved to the left. She testified that she observed a very tall individual wearing a white sweatshirt dart out of the woods to the right and then dart right back slightly ahead of her car. Upon seeing this person, she tapped on her brakes but after she passed him, she stopped looking towards him. She testified that only a second or two later as she was moving her foot from the brake back to the gas pedal, an impact occurred. She testified that she instantaneously peripherally observed a flash when the right front corner of her car was impacted and then her windshield was impacted and shattered. The infant-Plaintiff's body then either went over her car or to the right of it and fell onto the roadway. She testified that after the impact, she pulled over to the side of the road and she saw the boy who was wearing the white sweatshirt run into the road screaming. She saw the infant-Plaintiff lying face down on the white line in the road. She then observed a woman who had been passing in the opposite direction who stopped to help roll him over. She testified that the infant-plaintiff was unconscious and that she instructed the other boy not to touch the infant-Plaintiff.
In her statement given to the police pursuant to Criminal Procedure Law § 210.45 on the date of the accident, Ms. Klatch said:
"I saw two boys on the side of the road right by the edge of the woods. Because it's Halloween I slowed way down. As I approached the boys, one of them jumped in and out into the roadway right in front of my car causing me to hit him and for him to come up on my hood and into the windshield. He bounced off the car and onto the street."
Ms. Klatch has also submitted an affidavit in support of her motion. She attests that she was driving eastbound on Cold Spring Road and that the accident occurred in the middle of the block approximately 100 feet before the intersection of South Woods Road. She further attests that "there were only woods and trees to the right of her vehicle." She again attests that there were no traffic signals or devices in the vicinity of the accident.
David Jolson, the young man who was with the infant-Plaintiff at the time of the accident, testified as follows at his Examination Before Trial:
He agreed with Ms. Klatch that Cold Spring Road was a two way road with one lane of traffic in each direction with a shoulder on both sides large enough for a car to park. He testified that he and the infant-Plaintiff had been trick-or-treating on a side street off of Cold Spring Road and that they had been walking on Cold Spring Road towards South Woods Road for five or ten minutes before the accident occurred. He testified that there was a small patch of grass to the right of the shoulder and then a line of trees. He testified that he believed that the other side of the road had a sidewalk. He denied having seen any other trick-or-treators on Cold Spring Road.
He testified that he and the infant-Plaintiff were walking side-by-side with the flow of traffic and that he was closest to the white line which delineated the shoulder and the infant-Plaintiff was to his right closer to the patch of grass. Before the accident, the infant-Plaintiff told him that he was going to try to get candy from a house across the street and that he then crossed in front of where he was standing. He testified that he told the infant-Plaintiff that he would wait there. They both stopped walking, the infant-Plaintiff was standing slightly in front of him in the shoulder of the road and he then saw him look both ways. Jolson testified that he then looked back approximately 20 to 30 feet in the direction that the car was coming from but he did not hear or see any cars coming. He testified that as the infant-Plaintiff started to run across the street, he resumed looking back towards South Woods Road and so he did not see the impact. He testified that he did not hear a horn honk or any screams before he heard the impact and that he did not know whether the infant-Plaintiff saw the Defendant's vehicle before the impact. Jolson further testified that the accident occurred "in the lane of travel" and that the impact was "directly to [his] left, maybe a little bit in front [of him] too." He testified that he did not see the infant-Plaintiff on the windshield before he fell off onto the roadway in front of the vehicle. He also testified that he did not hear the infant-Plaintiff make any noises at any time. He testified that the vehicle stopped as soon as the impact happened.
Wilson Cisneros gave the police a statement pursuant to Criminal Procedure Law § 210.45 regarding her observations on the day in question. She stated that as she came around a curve, she saw a boy fall off a car onto the road. She was about four or five car lengths back and did not see the car hit the boy; she just saw him fall off. She stated that she was traveling about 35 mph as were the cars in front of her and that none of the cars seemed to be going fast and no one had to jam on their brakes.
The Defendants have submitted an affidavit of John McManus, P.E., in support of their motion. He attests to having reviewed the Police Accident Report and police investigation materials, deposition transcripts of Michele Klatch and David Jolson, photographs of the scene, the New York Department of Motor Vehicles hearing materials, statements of David Jolson, Michael Klatch, and Wilson Cisneros, the Findings Sheet and Serious Incident Time Log Worksheet, and personally visited the accident location to view the details and configuration of Cold Spring Road where the accident occurred. He concluded that the infant-Plaintiff had a sight line of over 500 feet and accordingly, had he looked to his left before entering the roadway, he could not have avoided seeing Ms. Klatch's vehicle. He further concluded that since the contact occurred at the right front corner of Ms. Klatch's vehicle, the infant-Plaintiff entered into the travel lane only a few feet before the impact and that since the testimony was that he ran into the roadway, he concluded that it took him less than one second to reach the place of impact. He opines that since the normal perception response time is between 1-1/2 and 2 seconds, Ms. Klatch did not have sufficient time to perceive, respond and avoid the collision. He further opines that the fact that the decedent did not sustain lower limb injuries, that he struck the base of the windshield as opposed to higher up on it, and the distance traveled by the infant-Plaintiff subsequent to the contact were all consistent with Ms. Klatch traveling at the moderate rate of speed as testified to by her. He concludes that the infant-Plaintiff's failure to yield the right of way when he ran into the roadway was the proximate cause of the accident.
"CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statue,' unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party." Hernandez-Vega v. Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 (2d Dept. 2007), quoting Aversa v. Taubes, 194 AD2d 580, 582 (2d Dept. 1993), see also Brown v. Smith, 65 AD3d 996 (2d Dept. 2009).
Given the timing of events, i.e., that discovery was not completed until after the Note of Issue was filed, the Defendants have adequately explained the delay in retaining and disclosing their expert, Mr. McManus. As for Dr. Sharma (see infra), he participated in the Peer Review process of the infant-Plaintiff's case at Nassau University Medical Center. The Defendant's failure to disclose him was owing to law office failure. More importantly, there has been no prejudice.
Vehicle and Traffic Law § 1152 (a) provides that a pedestrian crossing a street at a place other than a crosswalk "shall yield the right of way to all vehicles upon the roadway." "Vehicle and Traffic Law § 1146 imposes a superseding duty on a motorist to exercise due care to avoid hitting a pedestrian, Deitz v. Huibregtse, 25 AD3d 645, 646 (2d Dept 2006)." "The Pattern Jury Instruction informs the jurors of the general rule, inter alia, that a driver is under a duty to keep a reasonably careful look out for pedestrians, to see what is there to be seen, and to use reasonable care to avoid hitting any pedestrian on the roadway." See Deitz v. Huibregtse, supra, at p. 646, citing PJI3d 2:75 (2005). "The fact that a pedestrian crosses a street at a site other than a cross road is not prohibited, nor is it negligence per se." See Deitz v. Huibregtse, supra, at p. 646, citing Chandler v. Keene, 5 AD2d 42 (3rd Dept. 1957; Franco v. Zingarelli, 72 AD2d 211 (1st Dept. 1980).
The Defendants have not established their entitlement to summary judgment. See Charles v. Ball, 291 AD2d 367 (2d Dept. 2002). "Triable issues of fact exist as to whether the infant-Plaintiff was comparatively negligent for, inter alia, failing to exercise due care when crossing the street at a point other than an intersection or crosswalk and whether the Defendant, (Michele I. Klatch), contributed to the accident by failing to exercise due care in operating her vehicle (citations omitted)." Ryan v. Budget Rent A Car, 37 AD3d 698 (2d Dept. 2007), citing Vehicle and Traffic Law §§ 1146, 1152 (a); see also, Pareja v. Brown, 18 AD3d 636 (2d Dept. 2005); Dragunova v. Dondero, 305 AD2d 449 (2d Dept. 2003); Ruocco v. Mulhall, 281 AD2d 406 (2d Dept. 2001); Garner v. Fox, 265 AD2d 525 (2d Dept. 1999). The accident was located in the vicinity of two schools. It happened on a clear Halloween day. There was nothing obstructing the Defendant, Michele Klatch's view of the young men and she either never saw or lost sight of the infant-Plaintiff before the accident. This case is not comparable to several relied upon by the Defendants where the evidence clearly indicated that the injured party emerged from between or from behind other vehicles or obstructions.
The Defendants further seek dismissal of the Plaintiffs' claim for the infant-Plaintiff's pre-accident terror and/or conscious pain and suffering. "[W]hile a plaintiff bears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on a motion for summary judgment the defendant bears the initial burden of showing that the decedent did not endure conscious pain and suffering." Gaida-Newman v. Holterman, 34 AD3d 634, 635 (2d Dept. 2006), citing Schild v. Kingsley, 5 AD3d 103 (1st Dept. 2004); Massey v. New York City Housing Authority, 230 AD2d 601 (1st Dept. 1996).
The Defendants note that David Jolson testified that he never heard the infant-Plaintiff make any noises at the scene and that he did not appear conscious. In fact, the Ambulance Report indicates that he was found in the roadway "unconscious/unresponsive" with massive head trauma and a Glasgow Coma Score of 3. Furthermore, the Nassau University Medical Center records indicate that the infant-Plaintiff never regained consciousness and he was declared brain dead on November 5, 2008. In addition, a Peer Review performed by Dr. Adhi Sharma notes that the infant-Plaintiff's Glasgow Coma Score never went above 7, indicating that he never reached a level of consciousness above comatose. Thus, Dr. Sharma has concluded to a reasonable degree of medical certainty that there is no evidence that the infant-Plaintiff experienced any conscious pain or suffering.
Nevertheless, the infant-Plaintiff's medical records indicate that Glasgow Coma Scores fluctuated from 3 to 7 from October 31, 2008 through November 4, 2008. He responded to painful stimuli and was medicated for pain. There has been testimony and attestments that he responded physically to his parents' conversation, particularly about the Yankees and Mario's Pizza. Accordingly, there is an issue of fact as to whether the infant-Plaintiff suffered conscious pain and suffering. Garcia v. New York City Health and Hospitals Corporation, 230 AD2d 766 (2d Dept. 1996). And, the Defendants have not definitively established that the infant-Plaintiff did not suffer any pre-accident terror.
Phiri v. Joseph, 32 AD3d 922 (2d Dept. 2006), relied on by the Defendants is readily distinguishable. In that case, the decedent plaintiff was declared dead at the scene 15 minutes after the accident.
Assuming, arguendo, that the Defendants established their entitlement to summary judgment dismissing the Plaintiffs' cause of action for conscious pain and suffering, the Plaintiffs have established the existence of a material issue of fact. Dr. Howard B. Reisher, a Board Certified Neurologist, examined the infant-Plaintiff's medical records and found medical signs of consciousness. To wit, at times his motor response was described as localizing, the second best motor response on the Glasgow Coma Scale following "obeys." Dr. Reisher explains such a response is one in which a patient may perceive pain and it may be a conscious response. In addition, he notes that the infant-Plaintiff at times responded to noxious stimuli by localizing and withdrawal and an orthopedic note indicated that he responded to pain in his shoulder, as does a Trauma Progress note. And, Dr. Reisher notes that he was often placed on powerful pain medication. Furthermore, Dr. Reisher explains that if in a sedated therapeutically paralyzed state which the infant-Plaintiff may have been, patients may perceive pain but be incapable of expressing it because of the paralysis. Dr. Reisher opines that the hospital records did not establish a complete lack of consciousness but rather, there is indicia that the infant-Plaintiff endured conscious pain and suffering.
Accordingly, it is hereby
ORDERED, that the Defendants' motion for summary judgment, pursuant to CPLR § 3212, on the issue of liability is DENIED and this matter shall proceed to trial.
All applications not specifically addressed herein are DENIED.
This decision constitutes the order of the court.
DATED:Mineola, New York
January 9, 2012
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Hon. Randy Sue Marber, J.S.C.