Boyer v. City of New York

Boyer v City of New York 2024 NY Slip Op 30847(U) March 15, 2024 Supreme Court, Kings County Docket Number: Index No. 520088/2016 Judge: Richard J. Montelione 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: KINGS COUNTY CLERK 03/15/2024 12:07 PM INDEX NO. 520088/2016 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 03/15/2024

At IAS Part-99ofthe.Sup~lne Court of the State ofNew "(or~, held _in and for'the County .ofKings, at the. Courthouse· locatthl at 360 Adams Street, Brooklyn, NY 1120.i. on the 15th day pf March 2024.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 99 ---------. --·· . --------------- . -------. ---------- ... --- ---X AELIANA ·BOYER, MOTION IN LIMINE "Plaintiff, :OECISlON. AND -against'- ORDER

CI_TY OF NEW YORK, THE FIRE DBPARTMENT OF THE CITY OF NEW YORK AND JOHN DOE (THE NAME •~JOHN Index No.: 5200&812016. DOE'"' BEING FlCTiTlOt)_S, AS THE TRUE NAME IS PRESENTLY UNKNOWN) INDIVIDUALLY ANP IN THEIR OF'FICIAL CAPACITY,. .

Defendants. -.-----· ---------------- ------· -----· -- .. _,.__ . ----. ------- .. ·-----•X After oral atgu~ent, without a record, on March 14, 2024, the folloWing papers wete read on this motion pursuant to CPLR 2219(a):

Papers NYSCEF DOC.#

Plaintiffs Order-to Show Cause seeking a unified trial on liability and dama.ges, dated F:ebruafy 26~ 2024;.attorney.affinnation ofCh.r:istopherCellante, Esq.; affirmw Oil February 21, 2024; attorney ••emergency'' affirmation of Christopher C~lla,nte, .Esq., affirtned on February 21, 2·024; Exhibits A-G~ AffidavitofS-etvice sworn.to on.Feb.111llty 21. 2024; Noticeto Admit, dated February 22. 2024 (MS#9) ........• , .................... .... 234-248 Plaintiff's Motion in J..ime by Ord~r-to Show Cause,_.fi)ed via NYSCEF #250, seeking preclusion of defendants from referendng and/or off"Qring at trial any evidence or testimony regardingplaintiff s prior substance abuse, u$e of alcohol, and/or addiction; referenci,ig_ and/or offering·at.trialany evidence Qrtestimony ~garding prior arrests -and/or c1;myictipns~ attbrney affirmation ofC11ristopher-Ceila~te, Esq., affinned _on. 2SD-60 March 1; 2024; exhibits A-C~Trial "documents pursuanno CPLR 4532-A (NYSCEF#s 256-259), .......... , ... ····· ,;·...... .-...•. .,,. ;..... ·, ... •·•·· ........ ···••·· .. ·,.. •.••· .........•. ·...........•...... O('fendams• attorpey affirmation of JaneN. Barre~, Esq., affirmed-on March 5, 2024; ·2~1~266 Exhibits A-E; Defendant's Response to Demand dated March 8,.2024-........... ...._ ......... Plaintiff's "ttomQcy affirmation C>f C:hristopher Cellante,_ Esq., affirme9 Qn March 6, 2024, in further sunoortofOrde r to Show Cause for Unified Trial., .......... , ..•.......•.• ., ..•...... , 267 Defendant City ofNew York's Responses to Notice. to Admit; diited March 8; 2024 ....... 269 Plaintiff's Trial Memorandum in support of Motion to Strike fleadinp!Rene w and Reargue Motion for Summa,ry)udgment (NYS_CEF:11270), attorf'ley affinnation-of Christopher Cellante. affiimed on March 10, 2024; Statement of Material Facts dated March 10, 2024;_.Exhibit$ A-l. ............ ,............_..... _, _...............•.._....... , ............... 270-28()

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FILED: KINGS COUNTY CLERK 03/15/2024 12:07 PM INDEX NO. 520088/2016 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 03/15/2024

Aeliana Boyerv. City of New York, et al,: li1dei-No. 520088/2016

Defendant,.s'{co:rrected) attorney affinnation of J~e N. Barrett, Esq., affirmed 011 Maren 13; io24~ attorney affrrmationof Jane N. Barrett, Esq,; ''Sur-reply:' dated March -13, 2024; Attorney Affirmation of Jane N. Barrett, affirmed on March 12, 2024, in · opposition to plaintifrs motion to strike c;lefendant's answer-~nd renew and.in support of the ·defendant's cross-motion for summary judg111ent, March 12, 2024 ..... :-.. .................................. '•·• ................... .. •·• ..;.............. ,.·.......... .-........ , 282-2&4 Plainfiff'-~ motion "Admitting intp evidence statements made by the defendants in opp_osition tp the plaintiffs mo1ion for summary judgment a.nd i.n ·opposition. to plaintiffs order to show cause:for a unified trial related to.the identity of·tlieambulance.that struck the.plaintiff;" March 14, 2024~ Exhibi!:its A~B ........• , ..... ~,.; ................... ... ,-•. , ., ...... 285-287 Defendant's attQmey affinnation ofJa.JJe.'N. Barrett, Esq.; affirm~"Man:h 14, 2024, in opposition to in limine motion to cxcludeevidertc e of drug or.alcohol abuse; Exhibits A- C; Defenda11t's. Motion to Preclude: l} plaintiff froin subntirting· ~vidence of any discipl"inary histQri~. qr t>ther 1awsurts or prior accidents involv1ng FDNY witnesses, 2) prtclude any and all sections of the FDNY manuals because interrial rules are not admissible to establish liability-where they·impose a higher. standarq of care than that imposed by law, 3)p~lude-plai ntiff from arguing or eliciting testimony regai:ding a ouroor:t!=d .. consoiracv" or "'cover \lP'' within th~ FDNY·............... , ._., ... ,.........._..... ,.,. 288w292

MONTELlONE,RICHARD J., J.

Issue. of Bifurcation

Plaintiff seeks a unified trial on the. basis that the damages .she suffers from, in,cluding partial memory loss, was a dii:ect .result ofhea.cf trauma caµsed by the co11~ct between plaintiff's bicycle and allegedly defendant's. ambulance on May 9~ 201 ·6. Plaintiff.asserts that. these damages fl:TC'direqt\y relate4 to her-ability .to pr-0vide the jJJry. i:n the "liability ph~e ofthQ_trial, with an explanation as to why ·.there may be inconsistent testiinorty or statements and why het memory may .have been distorted. ·

At the time of the,° incident; plaintiff was wearing ahelmet ( h transcript,. 68, 19-21 j. s:~ The plaintiff djrects the court's -attention to the 50~h trW1$cript,. pp. 51, 53 which teflec:ts th~t piaintiff "mornerrtarily" lost consciousness (50~h transcript, -53-~13), but there is no testimony regardingthis incident C{l,using any difficµlty with providing answers ·to questions tbrough sworn testimony. Although pJaintiffstates she was hav~ng both shorMerm and long-term memory loss, Id .. At 69, the actual ·testimony at p. 69,12 ..25 reflects t•rnck·of fo(:us,. problems reading and $peaking, blurred vis.ion, ~d dizzinesf' but d(Jes _i1ot indicate any issues involving•meinory :and the court declines to make the inference. There is a: Bill of Particulars dated May 24, 2022, claiming memory loss., six y~·after the accident. The medical records from pla{ntiff's Jun~JO, 2016, visirat the Center for Cognition and Communication, approximately seven weeks-after the. accident. reflects; "closed head trauma with postt:raun1atic cognitive-impairment." However, pl~iritiff states that, "Dr.' s Brown arid :B usich'io state· that the plaintiff sustained _head trauma and she was ''feellng dazed and confused at the scene'' (Plaintiffs·counseJ's affidavit ~!.iO) which is either based solely on infonnation provided by plaintiffc;>r pure coIJ.jecture. The.Neurobehavioral Screel.l repon: dated JW1e 30, 2016, with a-diagnostic impression ar•~Head Ttauina, post-:- ooncussion syndrome, and cognitive defi_cjts" and impairments of"leaming and rnemo.ry".is qualified by "(t)hc inferences~ diagnostic impression arid recommendati ons detailed above are:all based on the assumption thatthe historical and.ntedicai information provided is·compl~te at1d

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FILED: KINGS COUNTY CLERK 03/15/2024 12:07 PM INDEX NO. 520088/2016 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 03/15/2024

Adiana Boyer v-. ·City of New Yerk, et al •. -lhdex No. ·S20088/2016.

acc~ate~'' There is no i_ndication within any of plairitiffs.~~ripts-.tha.t there·w~-an i$S.\1C· recalling_ the ev.ents •testified to ot that the ever:its were distprted or wiy-a~davi_ts indicatjng_ that plaintiff's.testimony was· iQacGurate dueto. cognitive impairment, It.'s one thing to assert that -lack of memory and/or ~o_gtiitive· impa.irment.prevented· full and cbinplete·.answel"$. to questions, but another lo- give detailed 'answers and·then-claim .cognitive· impairment.

The court rejects plaintiff'·s argtinrents that -the orthopedic/neurologicafinjurie~ req4itiiig m~tiple surgeries is· pro.bative- regarding how the,accident occurred. All the cases cited by plaintiff-involve jpstances ~here the qamagC$ ·are directly intedvvined:with the meo_hanism ofthe accident. Here, there is- no objective medical ·evidence from either .the amb.u1ance-crew that eventl,la.lly transp9rted plaintiff to .the hospital or hospital reco$ thJt iQdicate head.tra,,una or· loss ofrnemory"or cognitive-'impairment. Pfaintitfcargues.there.was a ''head iajufy which r.esulte~ in .docume11ted .confusjon on:tlie .date of the accident and. cognitiv~ deficits" (plaintHI'_s couns~1•s affidavit in sQpport, 125, but thi;re is .no such dt1cilmentation that has been provided to .the court ofsuch .confusion-on 'the date ofthe accident. Or for ihat matter, ·any confusion in the course of answering qu¢stions uqder oath_. There is.-no j~~ue of facfti.iat !111 incident q~curred in:volving-a vehicie·and plainiiff ridirtg bet.bike;_ The issue is whetbet tbe,vehicle was one -ope~ted by the N~w York Ctty•fire· Oepartm~nt andth~se medical re~ords:•have no bearin,g on tins ~termination.

The, court fmds tf.i~s trial shouI~ remain- bifurcat~ j>~u;~Uo .22 N..Y~C.R.R.. § 2p2.4i and plaintiff has .failed to- show how the damages suffered is relevant 'to· the-mechanism of the -incident. ·Carb_qcci.., La~ "(lf'ovl? £ntertainmeniLLC~ 64 A.D.).d. SJ-1. 532~ 883· N.Y.s2d ·J l3 (2tJ DepL 2009)~

Issue of Prior- Substance Abuse~. Use of Alcohol and/or Addiction; Referencin•g a.nd/or.-0:tfering at.Trial.Any Evidence or Testimony Regarding Prior Artests and/or Cortviotions:

Plaintiffs·on1y-conviotion involved PL§ 240.20. disorderly conduct, which-is:a violation and not a -crime;. lmpeacpment is only permitted unde.r CPLR4$ l"3. ~en _there is a conviction .of a ~rime ,and therefore defe~ant may not rai~ the i~sue ·ortbi"s conviction. during cross- examination. Notwithstanding· deiendant's. request to talrejudicia l .notice o.f material from the FDA 's ·SAMHSA website and assertions ·a~ to the side ~ffects, of "suooxone- in~lµde fatigue, "dizziness~ poor coordination and feelings of sedation,., there is-no medical evidence on .the .date.- -of the accidentsl!-ggestj:q.g tb.at, any of these side effec(~ we~ the -reslllt of.meqiqation. ~ven assuming an increased dosage on the .date of the: accident. The court finds plain.tifr's past-drug bisto.ry .and current medication~ are not relevant int~ liability phase. ofthe trial and ha-ve not been implicated, in 1})is- incid~nt, ate l!Jlduly prejudicial, and tb~fore dir~ts_ that these i ~ -may.not be raised duting cross examination by the-defendant s·eeLopez·v CityofNew Xork, 192- .AD3.d 634, 146 NYS3d.·$t, 2021 "NY Slip Op ql94S,.202l WL 1179:WS Il$t_Dept2'02l]; 'f(t)l,le :court properly' e,cetcis:ed trait discretion hi precluding- cross-examination on convictions.that were largely -reiated tQ plaintiff's history· of drug a.d.dictfon,:. which had little b~ring on hf& cn:dibility;'' !J'ee· also Goodsleiri v Ankor .Lea~·ing,· lnc,. 51 AD2<1 722, 379 NYS2d 153 [2d Dept 1976). where: .court held ·questioning of past drug use improper where there was no· showing ·of sucl:u.tse at the time oftheac~ident;._Cf M. v.Ne.w-YQrkCity Tr. Auth.,>4 Misc 3.d 829., 781 NYS2d 865, 2004 NY Slip Op 24291.,2004 WL 1796189 tsup Ct 2004] where court precluded questioning :r_egarding past us~ of heroin for the sole purpose ofimpeaGhing·party-';s credibility where-the. 3 ~f.S

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FILED: KINGS COUNTY CLERK 03/15/2024 12:07 PM INDEX NO. 520088/2016 NYSCEF DOC. NO. 298 RECEIVED NYSCEF: 03/15/2024

Aelian_a· Boyer v~-City of New York, etal, Index No. 520088/2016

witness was participating fo·a chemical depe:ndency tr~tmentprogram~ The de.cision on this issue is not applicable to the damages phase ofthetrial as plaintiff's past drug bistoey, etc.;are· relevan_t. ·

Plaintiff's Motion to Strike Pleadings/Renew and Reargue Motion :for Summary Judgment

Plaintiffmoves. pursuant to CPLR 3126, to strike the Answer a:nd Affirmative Defenses of the defendants for falsely,_willfuHy~ and de!i'berat~ly denyingtlu!-t an FDNY amb~lance.-~ involved in the ·subject collision for ahnost 8 years and until the eve of trial an~ setting thi$ matter down for an inquest on damages; "(ii) To the; .e~tent the. Answer and Affirmative Defenses -are not stricken, pursuant to CPLR 2221 and. 50 l 5(a), granting the- plaititiff leave_ to renew/reargue her motion for summary judgment on the issue ofliability and vacating the Order of the Uo11orable Gina Abadi J. S. C. dated Noverriber 9. 2Q22 (NYSCEF _Dqc. No. l78)~ (iii) Upon renewailreargument and vacatll!, pursuant to CPLR )212, ·granting 1he pl~ntiff partial summary judgment agaim;t the defendants on the-issue of liability and ·striking theafntmative defense of comparative fault. The defendantthrough a ••corrected" attomey affiP"n.at_ion expfainir that she mistakenly indicated that a.New York City ambulance was involved in this incident when h~t intention was to say as ••alleged" by plaintiff.. The court will allow. th~ correction sin.®. the period of tbnc:ds Short and the-there is n:o prejudice to the plaintiff. The grounds:: uport which this motion:tQ strike is based are now moot. and.in any event, th:jsjustice may not consider su~h a motion because it was decided by another justice. CPLR 222l(a).

Issue.of Alleged Admission within Medical Record

Defe:p.dant seeks to intro.duce iestimony·from hospi-W employees who pwportedly recorded in -hospital tecords a statement or staiements mad_e by the plaintiff regarding_ the circumstances of the accident. As long as the:re is .direct evidence of tbe statements coming from plaintiff-and they are statements regarding.how the ip.cident o~curr¢d. _the court will permit tht::, these statements·as admissions. See·"Grechko v Maimonides Med ·Ctr.. ,. 188 A.D3d 832~ =8-34,. 134 NYS.3d 43.5, 439, 2020 NYS1ip9p 06504,202.0:WL 6602(?13. [2dDept2020],

I fan entry in the medical records •1is incpnsistent with a position taken by a party at trial, it is adinissible _as an admission by that party. even ifit is not gennane to the diagnosis or treatment, as long a~ there is 'evidence connec(irig the party to"the entry'" (Robles v. Polytemp,_ Inc._, 127 AD.3d- l052, 1054,.7 N.Y.S.3d441, quoting.Coker v. Bakka_l Fooqs,Jnc;, 52 A._.D.3d 765_, 76"6, 861 N.Y.S.2d384).

Issue·of Precluding Plaintiff from submitting evidence·of.any disciplinary histories. or other lawsw.ts·or prior accidents involving FDNY witnesses. 2) Precluding ·any aru1·an sections of the FDNY manuals because internal rules are not admissible to establish liability where they impose a higher standard.of care than that imposed by law, 3) precluding plaintiff from ·arguing or eliciting testimony regarding a purported "conspiracy~• .or "cover up'·' within the FDNY

·The.court .grants def~ndant 's motion and precludes plaintifffrom questioning witnesses regardu:ig other lawsuits or prior acc.idents involving FDNY witness~. However, piscipliriary · 4.ofS

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Aeliana Boyer v. City of New York, et al, Index No. 520088/2016

records may or may not be relevant and admissible and plaintiff may be limited to questioning of a witness outside the presence of the jury and the court may ask for an offer of proof before allowing such testimony. The plaintiff is precluded from referencing the FDNY manual because it may confuse the jury as to a higher level of care than that required under New York Statutes. See Crosland v. New York City Transit Authority, 68 NY2d 165 (1986). Unless plaintiff can make an offer of proof regarding conspiracy or "cover up," plaintiff's counsel may not argue or question any witness regarding these theories.

Based on the foregoing. it is

ORDERED that plaintiff's motion to unify the trial is DENIED; and it is further

ORDERED that plaintiff's motion to prohibit cross examination of the plaintiff regarding her purported prior substance abuse, use of alcohol, and/or addiction; referencing and/or offering at trial any evidence or testimony regarding prior arrests and/or convictions is GRANTED and defendant's counsel may not elicit such testimony during the liability phase of the trial but if the issue excluded is raised by plaintiff the defendant may move the court to inquire at trial; and it is further

ORDERED that defendant's motion for the admission of medical records purported to contain admissions of the plaintiff is GRANTED to the extent that defendant must provide a foundation for the admission of such evidence, and defendant must make an offer of proof directly linking the plaintiff to the statements; and it is further

ORDERED that plaintiff must make an offer of proof regarding any evidence of any disciplinary histories and the court may allow questioning outside the presence of the jury but may not question any witnesses regarding other lawsuits or prior accidents involving FDNY witnesses, and plaintiff is precluding from entering into evidence sections of the FDNY manuals or questioning about specific provisions of the manual but may ask general questions regarding FDNY training and unless plaintiff makes an offer of proof outside the presence of the jury, plaintiff is precluded from arguing or eliciting testimony regarding a purported ..conspiracy" or "cover up" within the FDNY; and it is further

ORDERED that all other requests for relief are DENIED.

This constitutes the decision and order of the Court.

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