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July 20, 1993


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff Edward Faughnan, a paraplegic confined to a wheelchair, brings this personal injury action against various actors whose behavior, or the behavior of their agents, allegedly resulted in an above-the-knee amputation of his right leg. Faughnan commenced this action in the Supreme Court of the State of New York, Kings County, in April of 1991, naming as defendant Big Apple Car Service ("Big Apple"). In August of 1991, Big Apple filed a third-party complaint against Arnold St. Hilaire -- one of its drivers -- and the United States Department of Veterans Affairs (the "VA"), alleging that agents of the VA Medical Center committed malpractice when treating Faughnan's injuries. Plaintiff thereafter added St. Hilaire as a direct party defendant. On September 28, 1991, the United States removed the entire action to this court pursuant to 28 U.S.C. ยงยง 1441 and 2671 et seq.. Plaintiff filed a second amended complaint on August 6, 1992, which named the United States Veterans Administration as a direct party defendant.

 Plaintiff now seeks a partial grant of summary judgment in his favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. More specifically, Faughnan contends that Big Apple is vicariously liable for St. Hilaire's negligence; the latter's negligence, plaintiff argues, is shown by a November 1991 state court entry of default against St. Hilaire and confirmed by eyewitness testimony provided in affidavit form. With respect to the United States, plaintiff makes two arguments: first, that statements in a prior decision by the VA Ratings Board collaterally estop the United States from litigating the issue of whether personnel at the Bronx VA hospital committed medical practice; and second, that there are no genuine issues of material fact as to the liability and causation elements of plaintiff's medical malpractice claim. Plaintiff therefore argues that there is no triable issue concerning either defendant's liability. For the reasons provided below, plaintiff's motion is denied as to both defendants because material issues of fact remain.


 The facts underlying the complaint in this action are undeniably tragic. On August 10, 1988, plaintiff went to the New York State Office of Vocational Rehabilitation ("OVR") at 111 Livingston Street, Brooklyn, New York, to discuss rehabilitation with Michael Hooker, a vocational rehabilitation counselor. (Affidavit of Edward Faughnan, dated May 12, 1993, at P 2). *fn1" Mr. Hooker had arranged for an ambulette to take plaintiff to and from the OVR. *fn2" (Deposition of Michael Hooker at 9-10). The ambulette successfully transported Mr. Faughnan to the OVR (Faughnan Aff. P 2); he was accompanied by an attendant named Ann Marie McCaffery. (Hooker Dep. at 10; Affidavit of Ann Marie McCaffery, dated May 12, 1993, at P 3).

 After the meeting between Faughnan and Hooker, the ambulette that was scheduled to escort plaintiff to and from the OVR departed without waiting to return Faughnan to his Brooklyn home. (Hooker Dep. at 9-10; Deposition of Edward Faughnan at 8-9). Accordingly, Mr. Hooker phoned defendant Big Apple, a private livery service, to perform this transportation service. Big Apple was included on a list promulgated by the New York State Department of Education for providing service to OVR. (Deposition of Eleanor Janover, OVR Account Representative for Big Apple, at 45, 92).

 Defendant Big Apple admits that it dispatched a car driven by Defendant Arnold St. Hilaire to 111 Livingston Street for the purpose of taking Faughnan to his Brooklyn residence. (Big Apple's 3(g) Statement in Opposition; OVR Requisition Form, annexed as Plaintiff's Exh. B). However, defendant alleges that circumstances surrounding this dispatch raise a question as to Big Apple's vicarious liability for any resulting harm to plaintiff caused by St. Hilaire. First, Big Apple explains that it provides transportation through a radio dispatch service to which a number of independent limousine companies subscribe. (Affidavit of Heidi Spera, Big Apple Employee, dated May 27, 1993, at PP 3-4). Those companies use their own vehicles which they insure, control, and maintain; the companies also license the vehicles through the New York City Taxi & Limousine Commission ("TLC") and receive a 1099 form for tax purposes. (Spera Aff. PP 8-9). Payment for services is effected as follows: upon payment to Big Apple, a client (OVR, for example) receives a trip voucher; the voucher is given to the driver; the driver submits the voucher to Big Apple and receives payment. (Spera Aff. PP 6-7). LID Management Corp., one of the companies that subscribes to Big Apple's radio services, employs St. Hilaire as a driver and submitted a trip voucher to Big Apple for payment on the date in question. (Spera Aff. PP 10-11). Based on all of the above, Big Apple argues that St. Hilaire was not its employee but only an independent contractor.

 Second, defendant claims that prior to dispatching a car and pursuant to the company's ordinary procedure, the Big Apple dispatcher inquired whether the passenger was wheelchair-bound and whether he was capable of transferring himself into the automobile. (Janover Dep. at 18; Janover Aff. P 4). The reason for this inquiry was Big Apple's policy of not servicing handicapped persons unable to transfer themselves from wheelchair to vehicle. (Janover Dep. at 47-48). Defendant further alleges that plaintiff, through Mr. Hooker, responded that he indeed could transfer himself. (Janover Dep. at 18; Hooker Dep. at 13-18, 34). Plaintiff was trained at the Rusk Institute for Rehabilitation Medicine to use a slide board to effect such transfers; however, on this occasion, plaintiff did not have his slide board with him. (Faughnan Dep. at 15, 20-21). Plaintiff responds that he did not bring his slide board because he anticipated ambulette service but asserts that he has transferred himself without a slide board "many times before the accident." (Faughnan Aff. P 7).

 When the Big Apple car arrived, plaintiff requested that the driver assist in transferring him from his wheelchair to the vehicle by lifting plaintiff's torso and placing it in the front passenger seat. (Faughnan Aff. P 4). According to the eyewitness testimony of Ann McCaffery, St. Hilaire agreed to help plaintiff but, in so doing, dropped him, thereby causing plaintiff's legs to come into contact with the pavement. (McCaffery Aff. PP 5-7). To date, Big Apple has not had an opportunity to depose Ms. McCaffery as plaintiff failed, despite requests, to supply her address prior to filing the motion papers now before this court. (Faughnan Dep. at 100-01). Plaintiff asserts that Big Apple's request for this deposition is untimely. (Reply Brief at 2).

 Two passersby eventually assisted St. Hilaire in placing Faughnan in the vehicle. (Faughnan Aff. P 5). He was then taken home by St. Hilaire from whom he received a Big Apple receipt. (Plaintiff's Exh. E). Faughnan eventually brought suit against Big Apple in state court; after Big Apple filed a third-party complaint against St. Hilaire, Faughnan amended his complaint to name the driver as well. As mentioned above, the United States (a party defendant for reasons discussed below) removed the action in September. For some reason, the state court nevertheless entered a default judgment against St. Hilaire on November 1, 1991; it is unclear whether Big Apple had an opportunity to contest the entry of default. (Exh. D).

 II. The United States

 Since originally becoming a paraplegic, plaintiff has received and continues to receive disability benefits from the Department of Veterans Affairs, an agency of the United States. (United States Counter-3(g) Statement P 1). He also has received medical care from various VA facilities and from other private hospitals as well. (Faughnan Dep. at 50, 60, 66). In addition to paralysis, plaintiff suffers from the following: astrocytoma of spinal cord at T-1 level resulting in spastic paraplegia; atrial fibrillation; atherosclerosis; peripheral vascular disease; right acromionplasty of the spine; congestive heart failure; penile implant; hypertension; obesity; chronic alcoholism; and chronic smoking. (Deposition of Dr. Chung-Chu Shang at 38, 61).

 On August 11, 1988, the day after the accident discussed above, plaintiff was taken to the Bronx VA Hospital where he was x-rayed and diagnosed as having a fracture of his right lower leg. (Plaintiff's Exh. A). *fn3" An agent of the VA applied an Ace bandage to immobilize plaintiff's ankle. (Shang Dep. at 30-35). On August 12, 1988, at approximately noon, plaintiff was taken for a bath, at which time his Ace bandage was removed. When plaintiff returned to his room, he asked the nurse's aid who was assisting him to help reapply the bandage. (Deposition of Nurse Emily Garcia at 26-39). The nurse's aid did so and allegedly checked for tightness. (Garcia Dep. at 32-38).

 On August 13, 1988, at approximately 6:00 p.m., nurses removed the Ace bandage from plaintiff's leg and noticed that the leg was discolored. (Faughnan Aff. at 9(b); Deposition of Dr. Paul T. Morris at 20). In a report prepared at that time, Dr. Paul T. Morris, a resident surgeon who conducted a vascular surgery consult for plaintiff, attributed the discoloration to the "tourniquet like action of the Ace bandage." (Morris Dep. at 21; Plaintiff's Exh. G). In deposition testimony, Dr. Morris explained as follows concerning application of the Ace bandage:

Q: Doctor, I want you to assume that there has been testimony by the nurse who reapplied the Ace bandage on the 12th that she -- that she checked it by sliding her fingers underneath at either end and that it didn't appear to be too tight to her. Do you have an opinion with a reasonable decree of medical certainty whether that is an acceptable and good ...

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