HANDELSMAN v. The City of New York, et al., Defendants. (2020)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about August 10, 2018, which denied plaintiffs' renewed motion for summary judgment as to liability on the negligence and General Municipal Law § 205–e claims against defendant Andrew L. Llewellyn, unanimously affirmed, without costs.  Order, same court and Justice, entered on or about January 10, 2018, which, after an in camera inspection, directed Llewellyn to disclose certain redacted documents, unanimously affirmed, without costs.  Appeal from order, entered on or about December 12, 2017, to the extent it denied plaintiffs' motion for summary judgment against Llewellyn with leave to renew, unanimously dismissed, without costs, as taken from a superseded order.

The record demonstrates two different versions of how the accident occurred.  Plaintiffs' version is that their vehicle was stopped and that defendant Llewellyn crossed the double yellow line and struck them.  Llewellyn, however, testified at his EBT that plaintiffs' vehicle sped towards his vehicle and struck it.  These circumstances give rise to credibility issues, which cannot be resolved summarily (see Jeffrey v. DeJesus, 116 A.D.3d 574, 575, 984 N.Y.S.2d 325 [1st Dept. 2014] ).

Plaintiffs' reliance on Llewellyn's plea of guilty to reckless driving, a misdemeanor (Vehicle and Traffic Law § 1212), to support their argument that he is collaterally estopped from contesting liability is misplaced.  Llewellyn's plea, without more, merely constitutes “some evidence of negligence” (McGraw v. Ranieri, 202 A.D.2d 725, 726, 608 N.Y.S.2d 577 [3d Dept. 1994] ).  Further, contrary to plaintiffs' argument, the plea itself, is not dispositive of Llewellyn's liability because the allocution minutes indicate that he pleaded guilty to reckless driving with no further factual elaboration of the circumstances (see Gilberg v. Barbieri, 53 N.Y.2d 285, 292–294, 441 N.Y.S.2d 49, 423 N.E.2d 807 [1981] ).

To the extent the record permits review, we see no reason to disturb the motion court's order directing the production of certain medical records after the in camera review (see generally 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 878 N.Y.S.2d 727 [1st Dept. 2009];  Flores v. City of New York, 207 A.D.2d 302, 304, 615 N.Y.S.2d 400 [1st Dept. 1994];  see also Anonymous v. High School for Envtl. Studies, 32 A.D.3d 353, 359, 820 N.Y.S.2d 573 [1st Dept. 2006] ).

We are without jurisdiction to entertain plaintiffs' arguments concerning the parts of the order entered on or about December 12, 2017 that relate to discovery, since their notice of appeal limited the appeal to the part of the order that denied their motion for summary judgment (see CPLR 5515[1];  Martin v. Silver, 170 A.D.3d 505, 506, 93 N.Y.S.3d 852 [1st Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 205869 [2020];  McCabe v. Consulate Gen. of Can., 170 A.D.3d 449, 450, 96 N.Y.S.3d 23 [1st Dept. 2019] ).