HOLMAN v. CITY OF NEW YORK (2008)

In this action, plaintiff Eric Holman (“Holman”) seeks to recover for injuries allegedly sustained by him on October 15, 2001 when he tripped and fell in front of 507 82nd Street, Brooklyn, New York, a premises owned by the defendant The City of New York (“City”).   The complaint also alleges liability on the part of defendant Keyspan Energy Co. (“Keyspan”) as a result of work they did at the accident location.

Both defendants have interposed answers to the complaint.   Notwithstanding same, they now move pursuant to CPLR 3211(a)(1) asserting that:

․ a complete defense is founded upon documentary evidence by way of plaintiff's own statements to several physicians in medical records, all of which indicate that plaintiff was injured while working at the World Trade Center location on October 15, 2001 not, as alleged, while walking at or near 507 82nd Street in Brooklyn, New York. In light of plaintiff's own statements no action may lie herein.

CPLR § 3211(e) provides that the motion is to be made “at any time before the service of a responsive pleading is required.”   The instant motion clearly doesn't comply with the requirement.

 In addition, in order to prevail on a dismissal motion pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of plaintiff's claim.  (Martin v. New York Hosp. Med. Ctr. of Queens, 34 A.D.3d 650, 826 N.Y.S.2d 85 [2nd Dept., 2006].)

 Defendants rely on certified hospital records of Victory Memorial Hospital as the documentary evidence which form the basis for its motion.   On two occasions, the medical record indicates a doctor's notation where plaintiff advised a treating physician that he injured his left leg while “sifting rubble” at the World Trade Center disaster site and further stated that his left knee was injured when he fell against concrete at the World Trade Center site.

Defendants also submit the affidavit of an employee of Keyspan who states that Keyspan provides no service to any location in Manhattan and had no property or facility which serviced the World Trade Center.

With respect to the standard courts have followed in weighing whether the documentary evidence relied upon warrants dismissal, courts have held that the document must conclusively resolve all factual issues.  (Martin v. New York Hosp. Med. Ctr. of Queens, 34 A.D.3d 650, 826 N.Y.S.2d 85 [2nd Dept., 2006], McMorrow v. Dime Sav. Bank of Williamsburgh, 34 A.D.3d 650, 852 N.Y.S.2d 345 [2nd Dept., 2008], Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002].)

Here, the document relied upon, a medical record, contains notes of a doctor recording comments made by the plaintiff.   Defendants fail to cite any case where a medical record of this type constitutes the type of documentary evidence contemplated by the legislature when it enacted CPLR § 3211(a)(1).   The Court has not located any cases where a document prepared by a third party which contains notes of a conversation with a party was the basis of a dismissal finding.

David D. Siegel in his Practice Commentaries to McKinney's at C31211:10 notes:

We would be remiss, however, if we did not attempt to suggest a rule of thumb whereby to gauge whether an item qualifies as “Documentary”.   The word apparently aims at a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion is based.”

The medical records submitted in support of the motion don't meet the criteria outlined by Siegel or set forth by the Court in Goshen, McMorrow, or Martin.

If in light of the fact that both parties submitted affidavits on the motion and defendants have moved after issue has been joined, the Court were to treat the motion as a motion for summary judgment, the defendants still fail to carry their burden.

In effect, defendants are arguing that plaintiff's statements made to the treating physician, since they contradict the verified notice of claim and the sworn testimony of plaintiff at his 50h hearing, are a complete defense to this action.   Defendants cite no case law directly on point.   In opposition to the motion, plaintiff submits his own affidavit where he states as follows:

2.  On October 15, 2001, around 1:30 P.M., I was walking to the store for my mother when I was caused to trip and fall in front of 507 82nd Street, Brooklyn, New York. As a result of my accident I sustained serious injury to my left knee requiring surgery.

3. I have been diagnosed with bi-polar disorder since I have been a child.   Since my diagnosis I have been under the influence of numerous medications.   At the time I told the physicians at Victory Memorial Hospital and Dr. Wilen's Office that I was injured at the World Trade Center I was taking Depakote for my bi-polar disorder and chronic depression.   When I advised the staff at both Victory Memorial Hospital and Dr. Wilen's Office I was severely depressed and lonely and I made those statements in a effort to make myself feel better about myself and to get attention.

Plaintiff's sworn affidavit, his verified notice of claim and his sworn testimony at the 50h hearing raise triable issues of fact as to where and when this accident occurred.   The medical records relied upon by defendants raise issues of credibility as to plaintiff's account but they are issues for the jury to decide not for the Court to resolve on this motion.   Furthermore, whether the statements in the medical record are properly admissible at the time of trial as an exception to the hearsay rule under CPLR § 4518, as to being relevant for the diagnosis and treatment of the plaintiff's injuries, is a question for the trial court.  (People v. Dagoberto, 16 A.D.3d 595, 792 N.Y.S.2d 143 [2nd Dept., 2005], People v. Baltimore, 301 A.D.2d 610, 754 N.Y.S.2d 650 [2nd Dept., 2003], Sanchez v. Manhattan and Bronx Surface Transit Oper. Auth., 170 A.D.2d 402, 566 N.Y.S.2d 287 [1st Dept., 1991].)

Accordingly, the motion of defendants to dismiss the complaint is denied.

This constitutes the decision and order of the Court.

ROBERT J. MILLER, J.