Motion for Summary Judgment in Robin Patterson v. Nxk Corp. d/b/a Ambu-Trans Ambulette Corp.| Trellis.Law

On February 25, 2014 a Motion,Ex Parte was filed involving a dispute between Robin Patterson, and Nxk Corp. D B A Ambu-Trans Ambulette Corp., for Tort in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 04/17/2019 04:14 PM INDEX NO. 151641/2014
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 04/17/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

ROBIN PATTERSON
NOTICE OF MOTION FOR
Plaintiff, SUMMARY JUDGMENT

-against-

Index No.: 151641/14

NXK CORP. D/B/A AMBU TRANS AMBULETTE
Return Date: 5/17/2019
Defendants.

LEASE TAKE NOTICE, upon the annexed affirmation of ADAM S. PICINICH,

affirmed on the 18th day of April, 2019, the exhibits emexed thereto, Brief, and all of the

pleadings and proceedings heretofore had herein, the defendants will move this Court, at the

Motion Submissiuñ Part, Room 130, at the courthouse located at 60 Centre Street, New York

City, New York 10007, on May 17, 2019 at 9:30 a.m. in the forenoon of that day, or as soon

thereafter as counsel may be heard, for an Order granting summary judgment to Defendant NXK

CORP. D/B/A AMBU TRANS AMBULETTE, pursuant to CPLR 3212, together with such

other and further relief as this Court shall deem just, proper, and equitable.

The above-entitled action is for personal injuries.

Pursuant to CPLR §2214(b), answering affidavits and cross-modons, if any are required

to be served upon the undersigned within seven (7) days prior to the return date of this Motion.

Dated: New York, New York
April 18, 2019

BY:
~Adam S. Picinich
DONOHUE LAW FIRM, P.C.

Attorneys for Defendant NXK CORP.
D/B/A AMBU TRANS AMBULETTE

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5th
745 Avenue, 5th Floor
New York, NY 10151

(212) 972-5252

TO:

Eric Goldman, Esq.
SULLIVAN PAPA1N BLOCK McGRATH & CANNAVO, P.C.
Attorneys for Plaintiff
120 Broadway
New York, NY 10271

(212) 732-9000

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

WBIN PATTERSON Index No.: 151641/14

Plaintiff,

-against-

NXK CORP. D/B/A AMBU TRANS AMBULETTE

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NXK CORP.
D/B/A AMBU TRANS AMBULETTE'S MOTION FOR SUMMARY JUDGMENT

Robert D. Donohue, Esq.
Of Counsel

Adam S. Picinich, Esq.
On the brief

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PRELIMINARY STATEMENT

Plaintiff Robin Patterson's claims arise from alleged personal injuries she sustained on

October 17, 2013 while being transported home from Mt. Sinai Hospital. Particularly, Plaintiff

alleges that while a passenger on an ambulette operated by NXK her wheelchair was not

properly secured and when the driver stopped short, she fell from her wheelchair, sustaining

personal injuries. However, contrary to Plaintiff's assertions, she was not being transported

home by an ambulette owned and operated by defendant NXK. Consequently, summary

judgment in the favor of the moving defendants must be granted.

STATEMENT OF RELEVANT FACTS

Defendant NXK Corp. hereby incorporates the facts set forth in the Affirmation in

Support of Motion for Summary Judgment and the Affidavit of Neal Kalish filed in support of

this Motion for Summary Judgment as its Statement of Relevant Facts.

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LEGAL ARGUMENT

POINT I

granted"
Pursuant to CPLR 3212, a motion for summary judgmat "shall be if the papers

and proof are sufficient "to warrant the court as a matter of law in directing judgment in favor of

party."
any CPLR 3212. Summary judgment is proper to eliminate üññccessary expese to

named litigants where no issue of material fact is presented to justify a trial against them.

Donadio v. Crouse-Irving Memorial Hasp. Inc., 75 A.D.2d 715, 427 N.Y.S.2d 118 (4th Dept.

1980). To obtain summary judgment, the movant must establish the cause of action or defense

sufficient to warrant the court directing judgment in the movant's favor as a matter of law.

Papadopoulos v. Gamer's Village, Inc., 198 A.D.2d 216, 604 N.Y.S.2d 570 (2d Dept. 1993).

When the movant does so, it then becomes incumbent upon the opposing party to produce

evidentiary proof in admissible form sufficient to require a trial of material questions of fact.

Papadopoulos, 604 N.Y.S.2d at 570; New York National Bank v. Harris, 182 A.D.2d 680, 582

N.Y.S.2d 278 (2d Dept. 1992); and Cohen v. City of New York, 128 A.D.2d 748, 513 N.Y.S.2d

459 (2d Dept. 1987).

It is well settled that a party opposing a summary judgment motion must establish and

lay bare its proof and present evidentiary facts sufficient to raise a genuine issue of triable fact.

Morgan v. New York Telephone, 220 A.D.2d 728, 633 N.Y.S.2d 319(2d Dept. 1995); Northside

Savings Bankv. Sokol, 183 A.D.2d 816,584 N.Y.S.2d 77 (2d Dept. 1992); Gus v. Town of North

Hampton, 174 A.D.2d 649, 571 N.Y.S.2d 512 (2d Dept. 1991); Sikes v. Catvron Companies, 173

A.D.2d 810, 571 N.Y.S_2d 43 (2d Dept. 1991).

The shadowy semblance of an issue is not enough to defeat a motion. Schwartzman v.

Wertz, 153 Misc.2d 187, 580 N.Y.S.2d 612 (N.Y. Sup. Ct. 1991), affd 179 A.D.2d 540, 578

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N.Y.S.2d 565 (1st Dept. 1992); Mayer v. McBrunigan Construction Corp., 105 A.D.2d 774, 481

N.Y.S.2d 719 (2d Dept. 1984). The existence of some disputed facts will not defeat a summary

judgment motion if,even when the facts are construed in favor of the non-moving party, the

moving party would still be entitled to relief. Brooks v. Blue Cross of Northeastern New York;

Inc., 190 A.D.2d 894, 593 N.Y.S.2d 119 (3d Dept. 1993).

Furthermore, a motion for süñunary judgment may not be defeated by arguments and

contentions based on surmise, conjecture or suspicion. Corvetti v. J&S Mills, Inc., 201 A.D.2d

448, 607 N.Y.S.2d 389 (2d Dept. 1994); Jordan Manufacturing Corp. v. Zimmerman, 169

A.D.2d 815, 565 N.Y.S.2d 184 (2d Dept. 1992) (conclusory allegations, expressions of hope, and

unsubstantiated allegations insufficient to defeat judgment motion); Hass v. Town
summary of

Orangetown, 163 A.D.2d 726, 558 N.Y.S.2d 318 (3d Dept. 1990); Jones v. Gameray, 153

A.D.2d 550, 544 N.Y.S.2d 209 (2d Dept. 1990) (bald, conclusory allegations, even if believable,

are not enough to defeat summary judgment motion); E Savino Oil & Heating Co., Inc. v. Rana

Management Corp., 161 A.D.2d 635, 555 N.Y.S.2d 413 (2d Dept. 1990). Vague, conclusory

affidavits, replete with hearsay are insufficient to raise a triable issue of fact. Mayo Lynch &

Associates, Inc. v. Fine, 148 A.D.2d 424, 538 N.Y.S.2d 580 (2d Dept. 1989).

In the instant case, it is patently clear that Plaintiff was not a passenger on a NXK

vehicle during her return trip from Mt. Sinai Hospital to her home located at 50 Morningside

Ave, Unit 4E, New York, New York 10026. The sworn testimony of NXK's owner, driver and

dispatcher are all consistent in that Plaintiff was not on an NXK ambulette when the alleged

incident occurred. Particularly, the driver, Mr. Garcia testified that although he drove Plaintiff

from her home to Mt. Sinai Hospital, he did not pick her up from the hospital and drive her

home. Similarly, the dispatcher, Mr. Rivera, testified that Plaintiff's return trip with NXK was

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cancelled. Furthermore, Mr. Kalish, president and owner of NXK, testified that Plaintiff's retum

was cancelled. the undisputed evidence - NXK's dispatch
trip Correspondingly, documentary

report, from 2013 to October 2013 and audit report - confirms
trip log, trip history January 1, 17,

that Plaintiff s return trip with NXK was cancelled on the day of the alleged incident.

Therefore, Plaintiff could not have been a passenger on a NXK vehicle at the time of the alleged

accident.

Plaintiff has failed to establish and cannot establish that she was passenger on an

ambulette owned and operated by Defendant NXK when the alleged incident occurred. To that

end, Plaintiff has not produced a police report, ambulance report or any other documentary

evidence that establishes that she was a passenger on a NXK ambulette at the time of the alleged

incident. It is undisputed that at the time of the alleged incident that Plaintiff was not a

passenger on a NXK owned or operated by Defendant NXK. Therefore, it is respectfully

submitted that under the facts and circumstances presented, Defendant NXK is entitled to

summary judgment as a matter of law, as there are no genuine issues of fact sufficient to require

a trial on the issue of liability.

CONCLUSION

Based upon all facts and circumstances of this case, itis patently clear that Plaintiff was not a

passenger on a vehicle owned or operated by Defendant NXK Corp. at the time of the alleged

incident and, therefore, Defendant NXK Corp. was not the sole and proximate cause of the

alleged incident. It isrespectfully submitted that Defendant NXK Corp. that summary judgment

must be granted in favor of the defendant NXK Corp. d/b/a Ambu Trans Ambulette.

WHEREFORE, it is respectfully requested that the within motion be granted in all

respects and for such other and further relief as this court may deem just and proper.

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Respectfully submitted,

BY:

ADAM S. PICINICH
DONOHUE LAW FIRM, P.C.
Attorneys for Defendant NXK CORP. D/B/A

AMBU TRANS AMBULETTE
5°¹ 5"'
745 Avenue, Floor
New York, NY 10151

(212) 972-5252

To:

Eric Goldman, Esq.
SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO, P.C.
Attorneys for Plaintiff
120 Broadway
New York, NY 10271

(212) 732-9000

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

ROB1N PATTERSON
AFFIRMATION IN SUPPORT OF
Plaintiff, SUMMARY JUDGMENT

-against-

Index No.: 151641/14
NXK CORP. D/B/A AMBU TRANS AMBULETTE
Return Date: 5/17/2019
Defendants.

ADAM S. PICINICH, an attorney duly admitted to practice law before the courts of the State of

New York, hereby affirms the following to be true under penalty of perjury:

1. I am an attorney with the law firm Donohue Law Firm, P.C., attorneys for the

defendant NXK CORP. D/B/A AMBU TRANS AMBULETTE (hereinafter referred to as

"NXK"
or "Defendant") and as such am familiar with the facts and circurnstances described in

this matter based upon the file maintained by my office in the defense of this matter, as well as

my own personal handling of this matter.

2. This Affirmation is submitted in Support of the Motion for Summary Judgment

filed on behalf of the Defendant NXK.

3. This matter arises from an alleged October 17, 2013 incident that Plaintiff, a

disabled person, contends occurred while a passêñger on Defendant's ambulette in the vicinity of

98th
Madison Avenue and Street, New York, New York. (See Verified Complaint and Plaintiff's

"A"
Bill of Particulars, #1, attached hereto as Exhibit and Exhibit "B", respectively.)

4. At the time of the accident, Plaintiff was allegedly a passenger on the ambulette

operated by NXK's employee, Hector Garcia.

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5. Particularly, Plaintiff contends that on October 17, 2013, Defendant NXK was

retained to transport her from Mt. Sinai Hospital to her home at 50 Morningside Ave, Unit 4E,

New York, New York 10026. (Exhibit "A", ¶l l) (emphasis added).

6. Plaintiff contends that the driver, while in his scope of employment, failed to

properly and adequately secure her wheelchair prior to transporting her from Mt. Sinai Hospital

to her home. (Exhibit "A", ¶ 17). (emphasis added).

7. Plaintiff further contends that Defendant NXK was negligent in that on October

17, 2014, itsdriver was negligent in that he "applied the brakes suddenly and without warning,

floor."
causing plaintiff ... to fall forward out of her wheelchair and onto the (Exhibit "A", ¶

19).

8. Plaintiff alleges that she sustained serious injuries as a result. (Exhibit "A", ¶ 24

and ¶26; Exhibit "B", #5).

9. As a result, Plaintiff filed a Complaint for personal injuries naming NXK d/b/a

Ambu Trans Ambulette Corp as the sole defendant. (Exhibit "A")

10. Defendant filed a Verified Answer to Plaintiff's Complaint denying all claims.

(See Verified Answer attached hereto as Exhibit "C")

11. Summary judgment must be granted in the instant matter because Plaintiff was

not a passenger on an ambulette owned and operated by NXK at the time of the alleged incident.

12. Hector Garcia, testified that he was the driver of the ambulette that transported

Plaintiff from her home located at 50 Morningside Ave, Unit 4E, New York, New York 10026 t_o

Mt. Sinai Hospital for an appointment on the day of the alleged incident and that the ride

occurred without incident. (See Exhibit "D", Examination Before Trial of Hector Garcia

("Garcia Tr."); 47:13-48:1; 48:22-25; 54:4-6)

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13. Mr. Garcia did not transport Plaintiff from Mt. Sinai Hospital t.0her home on the

day of the alleged incident and testified:

Q: Do you know how she was picked on that day9
up

A: No.

Q: By that I mean picked up from the location where you dropped her

off, Robin Patterson?

A: I did not understand.

Q: Do you know how she was picked up from the location where you
dropped her off?

A: No.

(Exhibit "D", Garcia Tr., 57:7-16).

14. With respect to dropping off and picking up the same patient for both legs of their

trip, Mr. Garcia testified:

Q: Just because you drop of a certain passenger of customer at their
destination doesn't necessarily mean that you are the driver who is
assigned to pick them up, does it?

A: Correct.

Q: Is it frequently the case that you drop a passenger or customer off

somewhere, and then someone else from your company picks that person

up and returns then home?

A: Yes.

(Exhibit "D", Garcia Tr., 31:19-32:5).

15. Mr. Garcia further testified:

Q: Is it ever the case that you are assigned to a job by a dispatcher and then
the job is cancelled before you reach the passenger?

A: Yes.

(Exhibit "D", Garcia Tr., 41:10-13).

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16. NXK's dispatcher on the day of the alleged accidat, Jeremiah Rivera, testified

patients'
that manifests from insurance carriers are received by NXK the night prior, and then

broken down into routes labeled by NXK as AMB, AMBU-1, AMBU-2, AMBU-3, AMBU-4

and AMBU-5. Mr. Rivera was responsible to assign drivers for the AMBU and AMBU- 5

routes, which designate Manhattan and Manhattan-Westside, respectively. (See Exhibit "E",

Examination Before Trial of Jeremiah Rivera ("Rivera Tr."); 30:24-32:10; 41:15-42:8).

patients'
17. Thereafter, Mr. Rivera scheduled the A-leg of the trip. (Exhibit "E",

Rivera Tr., 32:22-33:10).

18. With respect to the next record made on dispatch sheets, Mr. Rivera testified:

Q: ...what is the next record that is made after the dispatch sheet?

A: As the driver picks up the patient, I input the times into the computer
direct.

* * *

Q: ... So, what form are you physically looMng at on the computer that you
input the time in?

A: It's the dispatch sheet.

Q: Do you also input the time of the drop off into the dispatch sheet?

A: Yes, I do.

Q: And is that based on radio communication from the driver?

A: Yes.

Q: So, you input the time of pickup and the time of drop off in the dispatch
sheet electronically, correct?

A: Yes

(Exhibit "E", Rivera Tr., 43:5-44:3).

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Q: So, the next input that you would make, after you have entered the drop
off time of the A-leg for a particular patient onto the dispatch sheet in your
system is what?

A: The next thing, that's it. Basically it's a completed call. Pick up time,

drop off time, and then we have to complete it.

Q: What do you do to complete it?

A: It's like a little complete box we press; you know, check itoff.

Q: And so, is logs of pick ups for B-legs and such maintained separated from
the dispatch sheets?

A: The way it'slogged onto the computer, it's at the bottom, which they call
them call back. There's no time there, because we haven't got the call
back.

(Exhibit "E", Rivera Tr., 47:6-22).

19. With respect to NXK receiving and imputing patient call backs for the B-leg of a

trip, Mr. Rivera testified:

Q: ...what portion of the database or what form do they make the entry into?

A: It's like I said, the call backs are at the bottom of the list. So, when you
pull up the patient's name, it shows the B-leg, and at that time you input
the B-leg time, which is the time they called.

* * *

Q: So, the times are entered in manually by the individual person who's

taking the call,not automatically?

A: It draws the time once you punch itin. It'snot like you can justput itin...

Q: So, the time will reflect what time the name is punched up?

A: The live time, yeah.

* * *

A: Like I said, when we receive the call, we get the time. That time will be
on the sheet. You see the patient's name, phone number, the time for the

B-leg, and then we hit the next box will be when we pick them up from
the actual pick up, and then we also put the drop off, when we drop them
off at home.

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(Exhibit "E", Rivera Tr., 50:23-52:22).

20. With respect to Plaintiff's return from Mt. Sinai Hospital to her home, Mr.
trip

Rivera testified:

Q: Does that history/dispatch sheet] indicate anything else to you about
[trip
whether or not she was picked up, ultimately?

A: Picked up on the A-leg, yes. On the B-leg, it says cancelled.

(Exhibit "E", Rivera Tr., 65:9-13).

21. In fact, according to the below NXK trip history for the alleged day of the

incident, Plaintiff's return trip with NXK was cancelled:

PATTERSON, ROBIN's Trip History With NXK Corp DBA Ambu-Trans Amb
to 10/17/2013
10t17/E013

2 655 Completed 10/17/139:30 10/17/1309:49 10/17/fS O03
AveUnk: 10/17/1310.00
50Morningside 11845thAve
4E NewYork.NY10029
NewYorit NY10026
Vehicle: 102(710701.A) Driven GARCIA,HECTOR
2777857 6ancelled 10/17h3 14:41
NTA 11845thAve 10/17/131213 N/A 50MontngsideAveUnit
NewYork,NY10D29 4E
NewYork,NY10028
Ortver: NatAssigned

Callb3Ck Cancelled Completed Routed ScheduledVold
0 1 1 D G 0

"1" hereto as
See Exhibit to the Affidavit of Neal Kalish (hereinafter "Kalish Aff), attached

Exhibit "F".

22. the below NXK's history for Plaintiff from January 1, 2013 to July
Similarly, trip

2017 also indicates that Plaintiff s return trip on October 17, 2013 was cancelled:
24,

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hwhips nm 20013 to 7G44017 havirgstatus
(Pil>

PUTune ÿ PUA&kess 00 Te IO A&hess Account Status Tataf$
Tue02W20131499 |50MotregaideAve,NewYe&-
Tee 14:37 |248W33h St NewYork,NY INDEPENDENTCARE5YSTEMS Cinceled$52.2D
Tue02/USGBT2CALL 24W3abst.new Yode.NY TueCAll 3DMomhgsMehNewYort MDEPENDBGTCARESYSTEMS Caraged S5120

lamrats ma muonngsde YA.. hm tWÉhNewY&NY WOEP9IDerrC D
w wnran tuT 11zan wewye uY w ti12 æuompee re-YA. mDesnOENrcAREsYSTEMS Canceled 462

munsaaurao hanowns.ae wsa innes= newra. imDæEnDerT CARESYST015 CmW s
on,1naræucau tea s.on ja.nce sononn9.ae new YA. mDEPENDBRCAREsYST Canoeiled1s4EC0

a naDaou12a sonownsee wewYCs ess 1su nasco n mDEPENDENTCARE SYSTBASCmW SMM
r unaratalan 1sauaason ne Y a1sa sounsno e NewY WDEPSCENrCARESYSTEM5ComeWed SMM

(See Exhibit "F", Kalish Aff, Exhibit "2").

23. The NXK dispatch report for the of the alleged incident further
following day

confirms the cancellation of Plaintiff's return trip:

2777656 mmu- ) z 2 itsashava NowYork 102
q.L
--c, 4W alinevowrcme sysram --
ic Aaeaeaeanasess ase Pides awee s‡9ys-efgo y)pry pyptjeo |non so:ss a14sis

(See Exhibit Kalish Exhibit "3", complete copy of dispatch sheet).
"F", Aff,

24. NXK utilizes the software, Deerfield, which tracts the input and
dispatching

keystrokes of dispatchers. (See Exhibit "F", Kalish Aff,¶ 11).

25. The program audit function provides the time, date and the initials of the

employee that created the record or entered the data. (See Exhibit "F", Kalish Aff,¶ 12).

26. The audit trail is a feature of the dispatch and program and is in place to
billing

ensure the ofNXK's record keeping. (See Exhibit "F", Kalish Aff,¶ 13).
accuracy trip

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"tampering"
27. It does not allow for any changes or of trip records. Simply, any

changes, additions, or deletions, date or time changes, or changes to driver hardling a trip would

be captured, and NXK would know precisely when those changes took place. (See Exhibit "F",

Kalish Aff,¶ 14).

28. In this instance, the audit trailindicates that the last change was a cancellation of

the trip at 5:29 pm on 10/17/13 by JR, i.e.,Jeremiah Rivera. (See Exhibit "F", Kalish Aff,¶ 15,

Exhibit "4").

29. The Audit Trail feature is in place to ensure the integrity of NXK's data/record

keeping, ensuring the accuracy of its billing records. The feature is in place as a checks and

balances system to make certain that when NXK completes a trip, and creates a billing record,

that it is accurate and not altered or tampered with after the fact. (See Exhibit "F", Kalish Aff,¶

16).

30. In this instance, it documents that the transport for Ms. Patterson was indeed

cancelled at 5:29pm on October 17, 2013. (See Exhibit "F", Kalish Aff,¶ 17).

31. Further, Neal Kalish, president and owner of NXK, testified:

A: I spoke with our dispatch company, which is Deerfield, David Puehn... is
the owner. I asked him to provide me with an audit trail. An audit trail

basically documented the time of, time of pickup, time of drop off. It is
the key strokes that my dispatcher is making related to that particular
transport... Knowing that, in fact, we had in our system as a cancel at 3:30
in the afternoon, reassigned to another driver at 5:30 in the afternoon, and
then cancelled at that point going forward.

(See Exhibit "G", Examination Before Trial of Neal Kalish ("Kalish Tr."), 40:22-41:14).

32. Plaintiff con firmed that she utilized other ambulette services such as Westchester

and Sterling. Particularly, Plaintiff testified:

Q: And is that [Ambu Trans] the only company that you used to take you
Mount Sinai and back?

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A: No.

Q: What other services did you use?

A. Westchester, Ambu-Trans, Sterling. Whichever one they send me.

A: I been on Ambu-Trans, I been in Sterling, I been in Westchester.

(" 39:9-
(See Exhibit "H", Examination Before Trial of Plaintiff, Robin Patterson Patterson Tr."),

21).

33. Plaintiff further testified;

Q: Had there ever been any occasions where one agency takes you one way
and ano~-.er brings you back home?

A: Right.

Q: That's happened before?

A: Mm-hmm, yeah.

A: Because it'snot the same one allthe time, that's what I'm saying.

(See Exhibit "H", Patterson Tr., 41:5-13).

34. PI~intiR'testified that her procedure on the date of that alleged ac~L~ent required

sedation under general anestbesia and came out from under anesthesia at between 5:00 pm and

5:30 pm. (S

Case Info

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Carol Edmead Track Judge’s New Case

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Document Filed Date

April 17, 2019

Case Filing Date

February 25, 2014

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Motion,Ex Parte: Robin Patterson v. Nxk Corp. d/b/a Ambu-Trans Ambulette Corp.

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