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Peters v. City of New York11/23/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
Upon the foregoing papers in these related actions entitled Peters v City of New York (Sup Ct, Kings County, Index No. 9664/95) (action No.1) and Cowan v City of New York (Sup Ct, Kings County, Index No. 10852/95) (action #2) to recover damages for personal injuries, Don J. Peters (Peters), the plaintiff in action # 1, moves for an order, pursuant to CPLR 3126, striking the answer of defendants the City of New York (the City) and the New York City Health and Hospitals Corporation (the NYCHHC) in action # 1 and extending his time to file a note of issue and statement of readiness therein. Charlene Cowan (Cowan), the plaintiff in action # 2, also moves for an order, pursuant to CPLR 3126, striking the answer of the City and the NYCHHC in action # 2 by reason of their alleged failure to comply with the prior orders of the court or, in the alternative, for an order extending her time to serve and file a note of issue until such time as they have complied with said orders. Peters, as a defendant in action # 2, similarly cross-moves for an order, pursuant to CPLR 3126, striking the answer of the City and the NYCHHC or precluding them from offering testimony at the time of trial in action # 2. Defendant Faiz Ahmed (Ahmed) also cross-moves for an order, pursuant to CPLR 3126, striking the answer of the City and the NYCHHC or precluding them from offering testimony at the time of trial in action # 2 and dismissing any cross claims interposed by them against him in that action.
The City and the NYCHHC cross-move for summary judgment dismissing Peters' complaint as against them in action # 1 and Cowan's complaint as against them in action # 2 and all cross claims asserted as against them. Peters moves for summary judgment dismissing Cowan's complaint as against him in action # 2. Ahmed cross-moves for summary judgment dismissing Peters' complaint as against him in action # 1 and Cowan's complaint as against him in action # 2 and all cross claims asserted as against him.
At approximately 1:30 a.m. on June 17, 1994, Peters was operating a 1986 Acura vehicle owned by him when a collision occurred near the intersection of Eastern Parkway and Utica Avenue, in Brooklyn, New York, between his vehicle and a vehicle owned and operated by Ahmed. An Emergency Medical Services Unit of the City of New York (EMS), which was on its way to a sick call in the subway in that area, stopped to render assistance with respect to this accident. The emergency medical technicians, Carol Buffa (Buffa) and Christopher Prescott (Prescott) (the EMS workers) parked the ambulance in front of Peters' vehicle and, then, Buffa took approximately six flares and placed them in the roadway to block off the right westbound lane of the main road of Eastern Parkway, placing the first one behind Peters' vehicle and putting down additional flares in a diagonal pattern about 10 feet apart (up to a distance of about 50 feet from the rear of Peters' vehicle) as she walked east toward the intersection, so that vehicles approaching the accident site would be directed toward the left lane. Due to the injuries sustained by Peters in the collision, Prescott and Buffa had to remove him from the automobile in a stretcher.
While Prescott and Buffa were in the process of placing Peters, who was on the stretcher, into the back of the ambulance, a 1992 Jeep Wrangler owned by defendant Karen Ford and being operated by Keith A. Church-Ford (Church-Ford), who was driving westbound on Eastern Parkway, struck the rear of Peters' parked and vacant vehicle, causing Peters' vehicle to propel forward into the ambulance, injuring Buffa, further injuring Pete
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