Opinion
51751.
Decided September 5, 2003.
Brindisi, Murad Brindisi-Pearlman, LLP, (Stephanie A. Palmer of Counsel) for Plaintiffs.
Fischer, Bessette, Muldowney Hunter LLP, (Richard F. Hunter of Counsel) for Defendant Town of Lewis.
Smith, Sovik, Kendrick Sugnet, P.C., (Kevin E. Hulslander of Counsel) for Defendant-West Leyden Volunteer Fire Department, Inc.
Rossi and Murnane, (Vincent J. Rossi, Jr., of Counsel) for Defendants-Steven W. Sullivan and Linda S. Sullivan.
Petrone Petrone, P.C., (Elizabeth C. Clarke of Counsel) for Defendant-Town of Ava.
BACKGROUND FACTS
Plaintiffs were injured in a motor vehicle accident while they were traveling on Route 294 in the Town of Boonville in Oneida County on December 23, 1998. The vehicle they were traveling in collided with a private vehicle operated by Defendant Steven W. Sullivan and owned by his wife Defendant Linda S. Sullivan. At the time of the accident Defendant Steven W. Sullivan was Fire Chief of the Defendant West Leyden Volunteer Fire Department, Inc. (West Leyden VFD), and was responding to an emergency call in the Town of Ava, Oneida County.
The Town of Ava had a contract with West Leyden VFD to furnish fire protection and emergency and ambulance services for the Town of Ava. During the same time period the Town of Lewis had a similar contract with West Leyden VFD to furnish fire protection and emergency and ambulance services for the Town of Lewis. West Leyden VFD is a Not-for-profit Corporation with its principal office in the Town of Lewis where it was located and incorporated in 1947.
PRESENT MOTIONS
1. Town of Ava.
The Town of Ava has moved for summary judgment, claiming it cannot be liable to Plaintiffs because its only connection to the case is by reason of the contract with West Leyden VFD. Ava claims it had no control over the Defendants West Leyden VFD or Sullivans. Further, Ava claims West Leyden VFD did not have any of its physical apparatus maintained in the Town of Ava, a fact which it believes insulates Ava from liability.
2. Town of Lewis.
The Town of Lewis has moved for summary judgment and for conditional orders of indemnification, from both West Leyden VFD, and Steven W. Sullivan. The Town's summary judgment argument is that if the Town of Lewis has any liability, it could only be vicarious through Defendant Steven W. Sullivan, and Defendant Sullivan is immune from liability because of the absence of any showing of recklessness, willful negligence or malfeasance (General Municipal Law 205-b). The immunity of Defendant Steven W. Sullivan, it is argued, inures to the benefit of the Town of Lewis.
Alternatively, if the immunity does not apply, the Town of Lewis then argues that both contractually and under common law principles as an employer, the Town of Lewis is entitled to full indemnification.
3. West Leyden VFD and the Defendants Sullivan.
Defendants West Leyden VFD and Sullivans moved for summary judgment, claiming they cannot be liable to Plaintiffs because there is no sufficient showing of recklessness, willful negligence, or malfeasance, a predicate for liability in an emergency situation.
Further, Defendants West Leyden VFD and Sullivans request that Plaintiffs be precluded from offering proof in support of their Tenth Bill of Particulars, a claim for neurological damage to Christine Sawyer, and that this Bill of Particulars be stricken, and that the designated expert witnesses in connection therewith should not be permitted to testify.
The Defendants object to two of Plaintiff's experts who are expected to testify as to the accident, and emergency vehicle operation. Defendants claim Plaintiff's expert disclosure did not comply with CPLR 3101, and they seek preclusion. Alternatively, the Defendants request an opportunity for further disclosure and a request a Frye hearing ( Frye v. United States, 293 F 1013).
4. Plaintiffs Sawyer.
Plaintiffs John and Christine Sawyer have cross moved for permission to amend their Bill of Particulars to include a claim for neurological damage. Plaintiffs claim that Defendants were aware of the possible additional claim by Plaintiffs, that Defendants still have an opportunity to conduct a further examination before trial and obtain further disclosure, including further independent medical examination; and, accordingly, Defendants are not prejudiced by the additional filing of the Bill of Particulars. The Court considered the parties submissions pursuant to CPLR 2219, in addition to the oral argument of counsel.
APPLICABLE LEGAL PRINCIPLES
1. Summary Judgment
Statute and case law are clear that
". . . the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad, 64 NY2d 851). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Zuckerman, 49 NY2d 557 )." ( Alvarez v. Prospect Hospital, et al. 68 NY2d 320, 324).
Issue finding rather than issue determination is the Court's threshold inquiry on a motion for summary judgment ( Sillman, 3 NY2d 395). The process on such applications is for the Court to: (1) decide if a fact issue is found; (2) if a fact issue is found, decide if the fact issue is material; and (3) decide if the found material fact issue relates to liability (CPLR Rule 3212; Zuckerman, 49 NY2d 557; Barr v. County of Albany, 50 NY2d 247).
To obtain summary judgment the moving party must establish the entitlement based upon a tender of evidentiary proof in admissible form ( Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065; CPLR 3212[b]). To defeat such a motion, the party opposing it must make an evidentiary showing supported by admissible evidence that genuine, triable issues of fact exist ( Friends of Animals, 46 NY2d 1065).
A fact issue is material if it goes to the determination of one of the underlying questions to be decided by the fact finder based upon admissible trial evidence. Whether a fact is material or not will vary from case to case, and as to the separate causes of action. As a general rule, evidence is relevant if it tends to prove the existence or non-existence of a fact directly at issue in the case (see People v. Primo, 96 NY2d 351).
Summary judgment in a negligence action requires a clear showing of duty, breach, causation and damages, with the threshold issue of duty being a question of law for court determination. (see, e.g., Darby v. Compagnie National Air France, 96 NY2d 343; Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222; Palka v. Servicemaster Management Services Corp., 83 NY2d 579). There is a strong reluctance to grant summary judgment in a negligence action even when the facts are uncontradicted ( Andre v. Pomeroy, 35 NY2d 361). Granting such a drastic remedy, "which denies litigants their day in court", requires undisputed proof of the aforementioned elements of duty, breach, causation and damages ( see McGraw v. Ranieri, 202 AD2d 725; Namisnak by Namisnak v. Martin, 244 AD2d 258; Andre, 35 NY2d 361).
2. Indemnification
Indemnification is the right of one party to shift the entire loss to another, and such shifting may arise from an agreement or contract, or an implied obligation arising from the parties' relationship, such as employer-employee, or active-passive tortfeaser. (Bellevue South Assoc. v. HRH Constr. Corp., 78 NY2d 282). Central to common-law indemnification is the duty which arises from the principle that every person is accountable for the consequences of his or her own negligence ( Johnson City Cent. Sch. Dist. v. Fidelity Deposit Co. of Md., 272 AD2d 818).
3. Procedural matters.
Whether to allow a party to amend its' pleadings or strike same is a discretionary matter with statutory guidance. (CPLR 3025 and 3043). Leave to amend a bill of particulars should be freely given in the absence of prejudice or surprise ( Dalrymple v. Koka, 295 AD2d 469). When served without leave of the court after the filing of the note of issue, a Bill of Particulars is a nullity ( Boland v. Koppelman, 251 AD2d 176).
4. Preclusion and Expert
Trial courts have broad discretion administering pre-trial disclosure (CPLR 3101; Ingleston v. Francis, 206 AD2d 745), including whether to allow a witness to testify as an expert ( De Long v. County of Erie, 60 NY2d 296). Each party is required to ". . . disclose in reasonable detail the subject matter on which each expert is expected to testify . . . the qualifications of each expert witness and a summary of the grounds for each expert's opinion." (CPLR 3101 (d) (1)[I]). A request for a Frye hearing is appropriate only where a party seeks to submit innovative "novel" scientific, medical or technical evidence (see Lambadarios v. Kobren, 191 Misc 2d 86).
5. Fire Districts, Fire Protection Districts and Fire Corporations
A Fire District is a separate political subdivision with its' own employees, and has independent taxing authority to pay for liability insurance coverage (Town Law § 170 et al.; Nelson v. Garcia, 152 AD2d 22 [4th Dept. 1989]). When a town establishes a Fire District it is no longer liable under respondeat superior for the negligence of any firefighter employee, but the Fire District itself as the actual employer is the responsible entity. ( see Haskell v. Chautauqua County Fireman's Fraternity, Inc., 184 AD2d 12, 17 [4th Dept., 1992]).
Alternatively, a Fire Protection District established by a town is not a separate independent legal entity, it is a procedural mechanism permitting the town to provide fire protection (see Town Law § 184). The town is responsible for and controls a Fire Protection District; the department "members" are deemed officers, employees, or appointees of the town; the town controls the department's operations; and the town is liable for negligence on the part of such members, including negligent operation of fire trucks ( Nelson, 152 AD2d 22).
A town establishing a Fire Protection District has authority to enter into a contract or, if necessary contracts, "(a) . . . with any city, village, fire district or incorporated fire company maintaining adequate and suitable apparatus and appliances for the furnishing of fire protection in such district" (Town Law § 184).
A Fire Department formed as a corporate entity, ". . . shall be under the control of the city, village, fire district or town authorities having, by law, control over the prevention or extinguishment of fires therein" (Not-For-Profit Corporation Law § 1402(e)(1)). If the fire corporation furnishes fire protection to territory outside of the boundaries specified in its certificate of incorporation, then control is determined by reference to the location of its apparatus. (NFPCL section 1402(e)(2)).
DISCUSSION
A. Town of Ava
The Town of Ava is here acting as a Fire Protection District, as all counsel agreed, notwithstanding the misnomer used in its contract with West Leyden VFD. The Town does not have a fire department incorporated within its' geographic boundaries. The Town provided fire protection and emergency services as a governmental function, as opposed to a proprietary one (see Miller v. Morania Oil, O.C.P., 194 AD2d 770), by entering into the agreement with West Leyden VFD.West Leyden VFD is under contract to provide fire protection and emergency services to both the Town of Ava and Town of Lewis, but the Department was incorporated within the Town of Lewis, and is physically located within that township, and has its apparatus there. The Town of Lewis and not the Town of Ava is in control of, and responsible for, the West Leyden VFD.
There has been no evidence presented to demonstrate any question of fact making Town of Ava liable or responsible for the action of Defendant Steven W. Sullivan or West Leyden VFD. The evidence submitted demonstrates that the Town of Ava exercised no control, or supervision, over West Leyden VFD or its' members. Based upon the evidence presented it appears that West Leyden VFD was an independent contractor, its' relationship with Ava established solely by contract.
It is accepted law that in the absence of control an employer of an independent contractor is not liable for injuries caused to a third party by an act or omission by the independent contractor or its employees ( Austin v. Buffalo, 179 AD2d 1075 [4th Dept. 1992]; Anderson v. Oliver's Garage Service Station, Inc., 186 AD2d 608). An employer-employee relationship exists when the employer exercises control over the results produced or exercises control over the means used to achieve the results, the most important factor being the control of the methods (see CBA Indus. v. Hudacs (In re Claim of Werner), 210 AD2d 526). The ordinary rules of contract established by common law are inapplicable where the legislature has specifically addressed and modified such rules, as done here under the Not for Profit Corporation Law.
There are certain scenarios that could make the Town of Ava at least partially liable. It could be liable to Steven W. Sullivan for benefits for him or his beneficiaries if he was hurt responding to a call in Ava (General Municipal Law § 205). It could be liable to West Leyden VFD for damages and costs in connection with their equipment if the incident occurred in response to a mutual aid call in Ava (General Municipal Law § 209(3)(4); W. Valley Fire Dist. No. 1 v. Vill. of Springville, 294 AD2d 949 [4th Dept. 2002]). It could be liable under contract indemnification rules if the agreement so provided.
Here, none of the posited scenarios is applicable. There is no duty present to third parties under the arrangement this town made with West Leyden VFD, under the facts presented. The contractual nexus is not sufficient, the fact of responding to a call in the Town of Ava is not sufficient given that this was not a mutual aid response, and Lewis is the controlling township under incorporation and apparatus location tests. The contract language does not cover indemnification of this type occurrence. To impose a duty by reason of the contract alone would create a special relationship akin to those involving municipal liability in circumstances not present here (see Cuffy v. City of New York, 69 NY2d 255).
Summary judgment is therefore appropriate as to Town of Ava.
B. Town of Lewis
The Town of Lewis is also acting here as a Fire Protection District, not the separate Fire District entity. It undertook to fulfill its' governmental function of providing fire protection by also entering into a contract with West Leyden VFD, similar to the Town of Ava.
In disclaiming liability the Town argues that West Leyden VFD is an independent contractor and that the Town did not, and does not, have any control or supervision over the fire department's personnel or its' methods of operation. The Town claims the fire department is in control of day to day operations and is thus responsible. That argument has been previously raised in another context, and rejected. ( see Miller v. Morania Oil, O.C.P., 194 AD2d 770). Control and supervision are still with the Town, and to change that, establishment of a Fire District would be the proper mechanism. The Town cannot escape responsibility for statutorily imposed liability by disclaiming control (see Miller, 194 AD2d 770; NFPCL § 1402(e)(2)).
The imposition of statutory liability reflects one of several exceptions to the general rule that an employer is not responsible for the negligent acts of an independent contractor ( Rosenberg v. Equitable Life Assurance Soc., 79 NY2d 663). The legislature in granting immunity to individual firefighters for negligent acts (General Municipal Law 205-b) specifically acted to make Fire Districts liable for such negligence. The legislature's intent was that the independent Fire Districts could pay for any judgments via their taxing authority ( Tobacco v. North Babylon Volunteer Fire Dep't, 182 Misc 2d 480, appeal dismissed 276 AD2d 551). In the absence of a Fire District as an independent political subdivision, the Town of Lewis with a Fire Protection District is responsible for, and in control of, the West Leyden VFD. The law clearly places responsibility with the municipality despite the de facto evidence that actual day to day operational decisions were made by the West Leyden VFD.
The authority to pass whatever regulations it feels necessary to properly exercise the control over the fire departments ( Cook v. Geneva, 127 Misc 2d 261; NFPCL § 1402(e)(2)) carries with it the municipal responsibility for the fire department. The same legislative rationale that places liability with the independent Fire Districts is applicable to Towns which are defined as in control of the non-independent Fire Protection Districts.
As with the fire department Steven W. Sullivan must also be considered under the ultimate control of the Town, and the Town by extension responsible for his actions. Courts have determined volunteer firefighters to be employees of the municipality responsible for providing the protection, whether they be a town or village, as opposed to fire department employees ( Miller v. Savage, 237 AD2d 695). Steven W. Sullivan must therefore be considered a Town of Lewis employee. The fact Defendant Steven W. Sullivan was operating a private vehicle when the accident occurred does not disturb the Court's holding (Cox v. Greenwich, 33 AD2d 264). Additionally, the fact that Defendant Steven W. Sullivan was responding to an emergency call for the Town of Ava and its' Fire Protection District pursuant to a contract, and not a mutual aid call (see Cuddy v. Amsterdam, 62 AD2d 119) does not operate to exonerate the Town of Lewis.
Further, the Court does not believe the Town of Lewis should receive the same standard of immunity applicable to the individual volunteer firefighters (General Municipal Law § 205-b). There exists an understandable rationale for the legislative grant of such a standard to individual volunteer fire fighters for negligence. The legislature sought to encourage individuals to volunteer for an important public benefit. The fire companies, and by extension responsible municipalities, are distinct from their individual members, and do not receive the same protection ( Rosenberg v. Fuller Road Fire Dept., Inc., 34 AD2d 653; affirmed 28 NY2d 816).
The analogy to vicarious liability rules of vehicle owners and operators does not carry over to this situation, since the Town was not an owner of the Sullivan vehicle. Further, such vicarious liability vehicle rules do not apply to the firefighter situation presented here (see Tobacco, 182 Misc 2d 480, appeal dismissed 276 AD2d 551), insofar as the Town is concerned.
B. 1. Indemnification
Town of Lewis seeks indemnification from West Leyden VFD and Steven W. Sullivan.
Common-law, or implied indemnification, allows a party who has been compelled to pay for the wrong or tort of another to recover from the actual tortfeaser the damages the payor paid to the injured party ( see 17 Vista Fee Assocs. v. Teachers Ins. Annuity Ass'n of Am., 259 AD2d 75). The claim of an implied obligation can give rise to indemnification, but only where the indemnitee is liable in a vicarious role only ( Rogers v. Dorchester Assocs., 32 NY2d 553; McDermott v. City of New York, 50 NY2d 211).
It is the Town's position that at most it could only be found vicariously liable in light of its' lack of involvement with, and control of, the West Leyden VFD.
The Town further argues that the actively negligent and actual tortfeasers are the fire department and Steven Sullivan. Common law indemnification is unavailable to one claimed to be affirmatively negligent (see, e.g., Trustees of Columbia University v. Mitchell/Giurgola Associates, 109 AD2d 449). The Town has continually argued that, beyond entering into the initial contract, it has not taken any other affirmative actions towards the West Leyden VFD, negligently or otherwise. Therefore, according to the Town, if it is not released from the case it should be entitled to indemnification.
The Town has also argued that even if Steven Sullivan is considered a Town employee it is clear he, and the West Leyden VFD, were acting beyond their duties to the Town of Lewis at the time of the accident. Under the theory of respondeat superior an employer, including a municipality, may be vicariously liable for the negligence of its' employee when the employee is acting in furtherance of the employer's interests ( Judith M. v. Sisters of Charity Hosp., 93 NY2d 932; Polak v. Schenectady, 181 AD2d 233). The Town of Lewis has denied that West Leyden VFD or Steven Sullivan were acting in furtherance of the Town's duties as the Town has claimed it received no benefit from West Leyden VFD's contract with the Town of Ava. That argument is not persuasive. While the Department is a private not-for-profit corporation it was undertaking to perform a public function for the benefit of both the Town of Lewis and the Town of Ava (see Helman v. County of Warren, 114 AD2d 573).
Unlike a situation where a private employer has entered into a for-profit contract, or there are private shareholders with financial stakes, all three entities (Town of Lewis, Town of Ava, and West Leyden VFD) are not involved in for profit activities for individual private financial gain. The West Leyden VFD was incorporated as a not-for-profit entity and there is no claim or evidence that the firefighters received individual financial benefits from the department's different fire contracts. Rather, the monies received would go to benefit the department's physical plant including vehicles, protective clothing, equipment or advanced training for firefighters, and other lawful purposes (see General Municipal Law 204-a). Such improvements in turn would benefit the Town of Lewis by making the department more attractive to potential volunteers, efficient and capable, and thereby ideally providing more fire protection and emergency services for the Town residents. The Town of Lewis' claim that they received no benefit from the West Leyden VFD contract with the Town of Ava is not accurate. While the Town may not have received direct cash payments the Court does find they received a benefit from West Leyden VFD's financial improvements.
There is also the question as to scope of employment. Normally the determination of whether an employee is acting within the scope of his duties is a question for the fact finder ( Sánchez v. New York City Transit Auth., 254 AD2d 345) However, based upon the above analysis and evidence submitted the Court finds that West Leyden VFD and Steven W. Sullivan were acting within the scope of their duties to the Town of Lewis.
There is no question of fact that Steven W. Sullivan was acting in his capacity as a volunteer fireman for West Leyden VFD and driving his private vehicle to the emergency call. While the emergency was for the Town of Ava, nonetheless the Town of Lewis is liable for the actions of Defendants West Leyden VFD and Steven W. Sullivan as the controlling entity (NFPCL section 1402(e)(2)). The evidence does not reveal either defendant acting beyond the "scope of their employment" as case law has envisioned (see Clark v. Hoff Bros. Refuse Corp., 72 AD2d 936). But for Steven Sullivan responding to the emergency call it is unlikely he would have been on Rte. 274 at the time of the accident, and unlikely he would have been driving in the same manner. Further, the inherently dangerous nature of firefighting and emergency responses, especially for the sometimes long distances in rural areas makes the possibility of vehicular accidents foreseeable (see Zanghi v. Niagara Frontier Transportation Comm., 85 NY2d 423; Dugan v. Longo, 169 AD2d 872; Vehicle and Traffic Law section 1104). Additionally, it is not required that the Town of Lewis must have foreseen the exact type of risk for liability to attach ( see Savarese v. New York Housing Authority, 172 AD2d 506).
The rationale for vicarious liability to an employer under respondeat superior is that the cost of the employee's torts is best placed with the employer for whom the employee is acting ( Adams v. New York City Transit Auth., 88 NY2d 116). The Town of Lewis as the employer is able to carry the cost of liability through insurance and its' inherent taxing authority ( see General Municipal Law 205-b; Town Law 184). Therefore indemnification of the municipal employer by its' employees is not warranted and a conditional order of indemnification from Steven W. Sullivan on behalf of the Town is inappropriate.
B. 2. Contractual Indemnification
The Town's argument for contractual indemnification against West Leyden VFD arises from its' agreement which states in part that West Leyden VFD ". . . will provide suitable liability insurance to protect the [Town of Lewis] against any and all liability or claims as a result of such ambulance service and the activities in connection therewith." The parties agreement is one for insurance coverage which is ". . . clearly distinct from and treated differently than an agreement to indemnify" ( Roblee v. Corning Community College, 134 AD2d 803 appeal denied 72 NY2d 803; Kinney v. G.W. Lisk Co., 76 NY2d 215). Such provisions for insurance coverage are not against public policy, as long as they are not unconscionable or overreaching (Board of Education v. Valden Associates, Inc., 46 NY2d 653).
The Court interprets the language of the agreement to be that the liability insurance coverage to be procured by West Leyden VFD was to cover the Town of Lewis for any vicarious liability for the negligence of West Leyden VFD. The agreement did not require the Town to be an additional named insured, nor did the agreement even set a figure for the liability insurance. The Court concludes this is an insurance obligation as opposed to contractual indemnification ( see Roblee 134 AD2d 803 appeal denied 72 NY2d 803; Kinney, 76 NY2d 215), and the Town of Lewis is not entitled to contractual indemnification from West Leyden VFD.
B. 3. Common Law Indemnification
The Town of Lewis is also seeking common law indemnification from West Leyden VFD. The law is clear that where a Town establishes a Fire Protection District and contracts with a Fire Department to provide such protection the Town is considered the employer and the Fire Department is not liable. As here, ". . . the Town retained complete control over the Fire Company and ultimate responsibility for fire protection . . ." ( Miller v. Savage, 237 AD2d 695). The Town of Lewis is the employer and responsible and not the West Leyden VFD.
The Towns or Fire Districts as independent entities have responsibility for fire protection. There has been insufficient evidence put forth at this point to demonstrate that the West Leyden VFD was independently negligent, beyond the claim of vicarious liability, for the Court to impose common law indemnification upon the department for the benefit of the Town of Lewis. The Town remains in control, a factor crucial to absence of an indemnification obligation from the Fire Department to the Town.
C. West Leyden VFD and Defendants Sullivans
West Leyden VFD has put forth two arguments for its' release from liability to Plaintiff.
First, it argues that the limited immunity granted to individual firefighters per General Municipal Law § 205 carries over to the fire departments. Individual limited immunity to a firefighter is statute based, and speaks of the individual members, not a corporate entity, and not a municipal entity (see Rosenberg v. Fuller Road Fire Dept., Inc., 34 AD2d 653; affirmed 28 NY2d 816). A holding otherwise appears limited on its facts to a pleading rule, and the implication in that case is that it was not intended to be broadly construed (see Ruppel v. Middleport Volunteer Fire Co. 12 AD2d 871, [4th Dept. 1961]. Further, there can be separate activity by a corporate entity that extends beyond individual activity that could form a potential base of separate liability under the usual rules for negligence.
Second, West Leyden VFD argues the Town of Lewis, not the fire department is ultimately liable. On its face, this is correct. As already discussed under statutory and case law within a Fire Protection District the Town of Lewis is considered to have retained complete control over the fire company and the Town of Lewis is considered to be Defendant Steven W. Sullivan's employer ( Miller, 237 AD2d 695). As to Plaintiff on this argument, West Leyden VFD prevails and would be fully excused if this were the only basis for their inclusion.
As to Town of Lewis, there could be potential breach of contract responsibility by West Leyden VFD, depending on the facts that may be developed with regard to the insurance clause of the contract between those parties.
Summary judgment for West Leyden VFD is therefore inappropriate in this case.
Defendant Steven W. Sullivan as a volunteer firefighter has correctly argued that he is entitled to immunity for civil liability as to simple negligence (General Municipal Law § 205-b; Tobacco v. North Babylon Fire Dept., 251 AD2d 398). That immunity also carries over to Defendant Linda S. Sullivan, since as the absentee owner of the private vehicle she would be liable vicariously if driver Steven W. Sullivan was liable (Vehicle and Traffic Law § 388). As Steven W. Sullivan the alleged tortfeaser is immune for simple negligence, Linda S. Sullivan as an owner is also protected ( Nelson v. Garcia, 152 AD2d 22 [4th Dept. 1989]; see Sikora v. Keillor, 17 AD2d 6, affirmed 13 NY2d 610)).
Defendant Steven W. Sullivan has also argued there has been no evidence presented that his actions rose to a level of recklessness or willful negligence to eliminate his immunity. The Court disagrees on that point. Plaintiff's have raised material issues of fact as to the reasonableness of Defendant Steven W. Sullivan's actions while driving on Route 274, and before. Specifically passing in a no passing zone, while going up hill, and drinking alcohol before answering the emergency call. The law provides that operators of emergency vehicles are entitled to disregard certain rules of the road if they have complied with designated requirements (Vehicle and Traffic Law § 1104). Whether Defendant Steven W. Sullivan complied with the necessary requirements is a question for the fact finder.
"Momentary lapses" of attention by emergency personnel may in certain situations not rise to the level of reckless disregard to impose liability ( see Gervasi v. Peay, 254 AD2d 172). However, on the evidence submitted it is not clear whether or not Defendant Sullivan acted intentionally and unreasonably in the face of known risks, or that his lapses, if any, were momentary or more. However, there have been questions of fact raised in sufficient form to submit that question to the eventual fact finders, and his case is therefore unsuited for summary judgment. The same holds true for defendant Linda Sullivan as a potentially vicariously liable party (see Lynch-Fina v. Paredes, 164 Misc 2d 963).
D. Preclusion and/or Strike Plaintiff's Tenth Bill of Particulars; Plaintiff's Claim to Amend to add Neurological Damage
Defendants Sullivans and West Leyden VFD have also moved to prohibit Plaintiffs from submitting a Tenth Supplemental Bill of Particulars, and submitting proof, expert and other, in support of a claimed new theory of recovery that Plaintiff Christine Sawyer suffered neurological damage from the accident. Alternatively, should the Court refuse to strike Plaintiff's claims, Defendants have requested further discovery and disclosure as to the alleged claim. In response Plaintiffs have moved for permission to amend their Tenth Bill of Particulars.
Although the Supplemental Bill of Particulars filed post Note of Issue and without leave of the Court is technically a nullity ( Bartkus v. NY Methodist Hosp., 294 AD2d 455), the Court has discretion to preclude, grant the Plaintiff's request to amend, or strike the case from the trial calendar (CPLR 3025; Stevens v. Dacion Corp., 184 AD2d 377). In exercising its' inherent discretion, and in the absence of clear prejudice to the opposing party, a Court should freely grant such amendments on terms that it determines just ( see Griffiths v. Lindemann, 152 AD2d 655). Defendant's strongest opposition is based upon a claim of lateness, that with a trial date looming they have been prejudiced by Plaintiff's actions. Lateness in and of itself is insufficient to bar Plaintiff's claim ( see Rutz v. Kellum, 144 AD2d 1017 [4th Dept. 1988]. There must be lateness with prejudice, and the mere need for more discovery is not prejudicial enough to bar the Plaintiff's claim ( Rutz, 144 AD2d 1017). "Prejudice" as used herein means the opposing party has been "hindered in the preparation of its case or has been prevented from taking some measure in support of its position" ( Garrison v. Wm. H. Clark Mun. Equip., 239 AD2d 742). The fact that the Defendants may be required, if they so choose, to conduct further discovery is an insufficient burden to constitute prejudice as envisioned by the courts ( Garrison, 239 AD2d 742).
Defendants have also argued that Plaintiffs now have a new claim of damages. Plaintiffs argue the alleged neurological damage is a more detailed claim of injuries previously alleged. The record demonstrates that Plaintiffs did put the Defendants on notice of the detailed claim as soon as they were in receipt of the sufficient information to support the theory. In determining whether to grant the motion to amend, or strike same, the Court is also granted the authority to review the alleged "new" claim upon its' merits ( Sadler v. Town of Hurley, 304 AD2d 930). The Court having reviewed the report of Dr. Jaqueline Santoro cannot say the Plaintiffs alleged neurological complaints are without merit. Defendants have demonstrated the need for, and are entitled to, further discovery based upon this claim. The Court is mandated to balance the competing parties interests as justice requires.
Motions to supplement Bills of Particular are treated as motions to amend pleadings ( Scarangello v. State, 111 AD2d 798). Plaintiffs' request to amend their Bill of Particulars with service of the Tenth one is granted because of the absence of clear prejudice to the Defendants ( Abdelnabi v. New York City Transit Auth., 273 AD2d 114). The record reveals Plaintiffs' have provided Defendants with the applicable authorizations for further discovery, and have offered to make Ms. Sawyer available for further examinations ( Tate v. Colabello, 58 NY2d 84). Further, the Court has upon Defendants' request adjourned the previously scheduled trial to permit the further discovery. Defendants request to strike Plaintiff's Tenth Bill of Particulars, and bar evidence that Christine Sawyer suffered neurological damage from the accident is denied. However, Defendants are granted additional time to conduct further discovery on Plaintiffs' claims.
E. Motion to Preclude Plaintiffs' Expert Response as Non-compliant
Defendants' have argued that Plaintiffs expert disclosures as to proposed witnesses Theodore Tully and Craig Thrasher fail to comply with CPLR 3101(d)(1). CPLR 3101 (d) (1) (I) requires each party to "disclose in reasonable detail the subject matter on which each expert is expected to testify . . . the qualifications of each expert witness and a summary of the grounds for each expert's opinion." The Court has not seen any evidence that the Plaintiffs intentionally or willfully failed to disclose any theory of liability or that plaintiff deliberately sought to deceive defendants ( Law v. Moskowitz, 279 AD2d 844). While Plaintiffs are not required to provide any reports prepared by their experts they must provide a summary of the grounds for their experts opinions ( Richards v. Herrick, 292 AD2d 874 [4th Dept. 2002]).
Plaintiffs expert disclosure as to Mr. Tully detailed the documents and material he reviewed for his report. The disclosure also indicated he would testify that Defendant Sullivan: was the primary cause of the MVA; that he operated his vehicle with reckless disregard for other motorists; that he made decisions concerning his vehicle which did not allow for sufficient road clearance; that he did not use sirens and warning lights appropriately; that he was operating at excessive speed for the road and conditions; that he had been properly trained in the usage of his vehicle in emergencies and that he was grossly negligent in operating his vehicle.
Plaintiffs disclosure as to Mr. Tully complies with the requirements of the CPLR and case law. It has disclosed a sufficient basis for the opinions put forth by the proposed expert ( see Krygier v. Airweld, Inc., 176 AD2d 700). The underlying facts of this case are not in dispute, nor hidden to any party. Plaintiffs have claimed Defendant acted more than negligently have laid forth in Mr. Tully's opinion the specific manners he so acted. There does not appear to be any "demonstrable prejudice or surprise" to defendant as to Mr. Tully's proposed testimony ( Castellani v. Bagdasarian, 286 AD2d 870 [4th Dept. 2001].
Plaintiffs expert disclosure as to Craig Thrasher is not as clear. Mr. Thrasher's proposed testimony is allegedly based upon his estimates of: when the Plaintiffs would have first seen Defendant Sullivan's vehicle; that Defendant Sullivan's vehicle would have been blocked by the two vehicles; that the vehicles would have been 501 feet apart leaving Defendant three seconds to react; that Plaintiff probably did not see Defendant Sullivan's emergency lights; and Plaintiff would have seen the headlights of the first vehicle in the proper lane. The Court agrees with Defendants that Plaintiffs disclosure as to Mr. Thrasher is insufficient. While the Defendants are on sufficient notice as to anticipated testimony of Mr. Thrasher, they have not been enlightened to any appreciable degree as to the basis for his opinions ( Syracuse v. Diao, 272 AD2d 881 [4th Dept. 2000]). Defendants are entitled to further disclosure as to the basis for Mr. Thrasher's proposed testimony.
F. Motion to Preclude Plaintiff's Experts, or Grant Frye Hearing
Defendants' have also requested a Frye hearing ( Frye v. United States, 293 F 1013) in regard to Plaintiff's experts. A Frye hearing should be held when there is a question of admissibility as to new, scientific, or medical evidence ( Lambadarios v. Kobren, 191 Misc 2d 86) and if such evidence is scientifically or technically reliable and "generally accepted in the scientific community to which it relates" ( Lara v. New York City Health Hosps. Corp., 2003 NY Slip Op 50887U [Sup. Ct. NY Co. Decision 2000], affirmed 305 AD2d 106).
In regard to the proposed testimony of Mr. Tully the Court does not see any novel or new theory sufficient to warrant a Frye hearing ( Selkowitz v. County of Nassau, 45 NY2d 97). The basis for his testimony is straight forward. Most lay persons are well aware of the rules of the road: do not pass on double line, do not pass going up a hill, do not exceed speed reasonable for road conditions. The fact that the accident arose from actions that most if not all lay persons could understand is not in and of itself enough to deny Plaintiffs their expert ( Selkowitz, 45 NY2d 97). Plaintiffs proposed expert is basing his testimony on whether Defendant Steven W. Sullivan had specialized training sufficient to avoid the accident, and whether Defendant could have or should have been able to avoid the accident ( Selkowitz, 45 NY2d 97).
This is not to equate that the Court will fully accept or allow Mr. Tully to testify to his proposed opinions, many of which seem to flirt near if not cross over into the province of the fact finder. Areas of inappropriate testimony for Mr. Tully would include that Defendant Sullivan operated his vehicle with "reckless disregard" ( Roman v. Vargas, 182 AD2d 543), and that Defendant Sullivan violated vehicle and traffic laws (LaPenta v. Loca-Bik Ltee Transp., 238 AD2d 913 [4th Dept. 1997]). What will and will not be allowed before the fact finder needs to be addressed at the time of Mr. Tully's testimony. However, no Frye hearing is necessary as to the underlying theory of Mr. Tully's testimony.
It is not the same result as to Mr. Thrasher. The basic principle for admitting expert testimony is when such testimony would help to clarify an issue which calls for professional or technical knowledge possessed by the expert and the area is "beyond the ken of the typical juror" ( De Long v. County of Erie, 60 NY2d 296). An expert witness, if so qualified, must base their "expert" opinion on facts in the record, or from facts personally known, they may not "guess or speculate" ( Kracker v. Spartan Chemical Co., 183 AD2d 810). Further it is discretionary with the trial court to admit such expert opinion, and whether to admit is an individual decision of the Court in response to the unique issue of each case ( Dufel v. Green, 84 NY2d 795).
The expert disclosure submitted does not sufficiently put forth the basis for Mr. Thrasher's proposed testimony. Further, Mr. Thrasher's proposed testimony appears to be completely speculative in that "Plaintiff . . . probably did not see the Defendant's emergency lights . . ." and that "Plaintiff . . . would have seen the headlights of the lead car . . ." Mr. Thrasher's curriculum vitae does not contain the types of qualifications, or training that would lead to the Court to accept Mr. Thrasher's testimony that his techniques, experiments or theories (whatever they may be) have gained general acceptance in the field in which it belongs (whatever field it may be). There has been no showing that Mr. Thrasher's testimony is based upon any field of study, or is technically reliable ( Lara v. New York City Health Hosps. Corp., 2003 NY Slip Op 50887U [Sup. Ct. NY Co. Decision 2000], affirmed 305 AD2d 106). Normally, the expert's qualifications or lack of skill or experience are factors of weight to be considered by the fact finder in its' decision to accept or reject such testimony( Felt v. Olson, 74 AD2d 722 affirmed 51 NY2d 977). However, the fact finder only reaches that point once the expert has been qualified as such by the trial court ( Pringle v. Pringle, 296 AD2d 828).
Plaintiffs must supplement their expert disclosure as to Mr. Thrasher to meet the requirements of CPLR 3101. Once that disclosure is updated, Defendants will be entitled to a Frye hearing in regards to Mr. Thrasher's proposed theory.
CONCLUSION
In accord with the foregoing it is hereby
ORDERED, the Town of Ava's motion for summary judgment is hereby Granted; and it is further
ORDERED, the West Leyden Volunteer Fire Department's motion for summary judgment is hereby Denied; and it is further
ORDERED, Linda S. Sullivan's motion for summary judgment is hereby Denied; and it is further
ORDERED, Steven W. Sullivan's motion for summary judgment is hereby Denied; and it is further
ORDERED, the Town of Lewis' motion for summary judgment is hereby Denied; and it is further
ORDERED, the Town of Lewis' motion for indemnification from Steven W. Sullivan is hereby Denied; and it is further
ORDERED, the Town of Lewis' motion for indemnification from West Leyden VFD is hereby Denied; and it is further
ORDERED, Plaintiffs' motion to amend their Tenth Bill of Particulars to include the claim Christine Sawyer suffered neurological damage from the accident is Granted; and it is further
ORDERED, Defendant Steven W. Sullivan's motion to strike Plaintiff's Tenth Bill of Particulars, and bar evidence that Christine Sawyer suffered neurological damage from the accident is Denied; and it is further
ORDERED, that Defendant Steven W. Sullivan's motion for further discovery and disclosure as to Plaintiff Christine Sawyer's claims of cognitive damage is Granted; and it is further
ORDERED, that Defendants motion for a Frye hearing as to Plaintiff's expert Mr. Tully is Denied;
ORDERED, that Defendants motion for further expert disclosure as to Plaintiff's expert Mr. Thrasher is Granted;
ORDERED, that Defendants motion for a Frye hearing as to Plaintiff's expert Mr. Thrasher is Granted.