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).
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 way of checking an Ace bandage for tightness given the fact that the patient had a fracture?
A: That appears to be an acceptable method of checking the tightness of an Ace bandage, and I have to qualify that with two statements. No. 1 is the amount of swelling around the ankle fracture changes minute by minute and hour by hour. So what was originally not too tight may have progressed to something that had become too tight because the swelling had increased. That is a general statement. I don't know the status of this man's swelling on the -- because I met him afterwards.