Opinion
111377/06
08-26-2009
Sergey Tatishev and TAISIYA KIM TATISHEV, Plaintiff, v. The City of New York and POLICE OFFICER SIMON URENA, Defendants.
For Plaintiff : Sullivan Papain Block McGrath & Cannavo, P.C. By Liza Milgrim, Esq. For Defendants: New York City Corporation Counsel By Ashley Hale, Esq.
For Plaintiff : Sullivan Papain Block McGrath & Cannavo, P.C. By Liza Milgrim, Esq.
For Defendants: New York City Corporation Counsel By Ashley Hale, Esq.
Saliann Scarpulla, J.
Defendants the City of New York ("the City") and Police Officer Simon Urena ("Urena") move pursuant to CPLR 3212 for summary judgment dismissing plaintiffs' complaint for injuries sustained when a police vehicle hit plaintiff Sergey Tatishev ("Tatishev"). The accident occurred at the intersection of the West 177th Street and Fort Washington Ave on December 31, 2005, when Urena's marked radio motor patrol vehicle ("the RMP"), which was responding to a radio call for help, hit Tatishev as he was crossing the street.
Tatishev and his wife, plaintiff Taisiya Kim Tatishev, brought this action in August, 2006. The complaint asserts two causes of action on behalf of Tatishev, the first cause of action for common law negligence and the second cause of action for negligent hiring, supervision, training or retention of Urena as a police officer. Plaintiff Taisiya Kim Tatishev asserts the third cause of action on behalf of herself for loss of services, society and consortium.
The City now moves for summary judgment on the ground of Tatishev's failure to offer any evidence of reckless conduct by Urena, as required by VTL § 1104(e). In support of its motion, the City offers the transcripts of plaintiffs' GML § 50-h hearings, the deposition testimony of Urena and his partner Juan Ramirez ("Ramirez"), who was a passenger in the RMP, the sprint sheet for the emergency call, and the accident report.
Plaintiffs oppose the City's motion. Plaintiffs' opposition rests on Tatishev's own testimony that he neither heard the sirens nor saw the flashing emergency lights before he was hit by the RMP as he was lawfully in a crosswalk. In addition, plaintiffs argue that there are issues of fact as to whether the RMP was engaged in emergency operation at the time of the accident, which if true, would make mere ordinary negligence, not recklessness, the proper legal standard for judging the City's liability.
Discussion
Under CPLR 3212(b), summary judgment "shall be granted if, upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The motion must be supported by (1) an affidavit, (2) by a copy of the pleadings and (3) by other available proof, such as depositions and written admissions. CPLR 3212 (b). To warrant a court's directing judgment as a matter of law, it must clearly appear that no material issue is presented for trial. Epstein v Scally, 99 AD2d 713 (1st Dep't 1984). When a party has made a prima facie showing to entitle it to summary judgment, the burden shifts to the opposing party to show by evidentiary facts that a claim or defense is real and can be established at trial. Indig v Finkelstein, 23 NY2d 728 (1968); see also Vogel v Blade Contr. Inc., 293 AD2d 376, 377 (1st Dep't 2002). Conclusory allegations or denials are insufficient to either warrant or defeat summary judgment. McGahee v Kennedy, 48 NY2d 832, 834 (1979).
The driver of an authorized emergency vehicle engaged in an emergency operation is exempt from certain rules of the road under Vehicle and Traffic Law ("VTL") §1104(a), (b). This privilege, however, is qualified by VTL § 1104(e), which imposes on these drivers "the duty to drive with due regard for the safety of all persons" and disclaims any protection for such drivers "from the consequences of [their] reckless disregard for the safety of others." Under VTL § 1104(e), the manner in which a police officer operates his or her vehicle in responding to an emergency situation may not form the basis of civil liability to an injured third party unless the officer acted in "reckless disregard" for the safety of others. Meade v Chestnut, 53 AD3d 645 (2nd Dep't 2008).
Emergency Operation
VTL § 114-b specifies two separate police activities fitting the definition of an emergency: "pursuing an actual or suspected violator of the law"and "responding to . . . a police call." The definition of "a police call" is sufficiently broad to encompass responding to a radio call from a police dispatcher or directly from another police officer, without any regard for how the Police Department categorizes calls or whether the officers actually believe the call to be an emergency. See Criscione v City of New York, 97 NY2d 152, 157-58 (2001); see also McCarthy v City of New York, 250 AD2d 654, 655 (2nd Dep't 1998).
Here, at the time of the accident, Urena's RMP was responding to a call placed directly by a fellow officer. Tatishev's argument that neither Urena nor Ramirez radioed back that they accepted the call before responding does not create an issue of fact as to the RMP's emergency operation. Tatishev also unsuccessfully argues that the Police Department's sprint report shows that the supervising sergeant called off further units from responding at 6:50 p.m., before the accident happened. However, there is no admissible evidence as to the exact timing of the Tatishev's accident and no evidence from which a trier of fact could rationally conclude that Urena and Ramirez were doing anything other than responding to the police call. Tatishev's own testimony places the time of the accident only roughly at about 6:00 or 7:00 p.m. Therefore, at the time of the accident, the RMP was involved in emergency operation as defined by VTL § 114-b, and Urena's operation of the RMP must be judged by the reckless disregard standard of VTL § 1104(e).
Reckless Disregard
The "reckless disregard" standard of care under VTL § 1104(e) "requires the trier of fact not to second-guess an officer's split-second weighing of choices," but instead to determine whether "the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome." Gonzalez v Iocovello, 93 NY2d 539, 551 (1999) (citation omitted); see also Campbell v City of Elmira, 84 NY2d 505, 510 (1994). The application of the "reckless disregard" standard entails a case-by-case factual inquiry into all relevant circumstances, and maybe, in appropriate circumstances, an issue of fact for trial. See Campbell, 84 NY2d at 513 (deferring to the jury's determination on the issue of the officer's recklessness where factual and credibility issues were in dispute).
In general, a police officer's conduct violating the rules of the road, standing alone, does not give rise to a VTL § 1104(e) cause of action, because such conduct is expressly privileged under VTL §1104(b). See Saarinen v Kerr, 84 NY2d 494, 503-04 (1994); see also Powell v City of Mount Vernon, 228 AD2d 572, 573 (2nd Dep't 1996). Also, a police officer's isolated instance of oversight is immune to civil liability under VTL § 1104-e. See Szczerbiak v Pilat, 90 NY2d 553, 557 (1997) (finding that the police officer's striking a pedestrian, while glancing down from the road momentarily to turn on his emergency lights, was "a momentary judgment lapse," which did not alone rise to the level of recklessness).
However, where plaintiff submits evidence showing that a police officer consciously and unjustifiably ignored a known risk while undertaking an emergency operation, the question of liability for a violation under VTL § 1104 should be left for jury determination. See Rockhead v Nelson Troche, 17 AD3d 118, 119 (1st Dep't 2005) (finding triable issues where the police chased a car through a solid red light in a heavily trafficked residential area, resulting in the chased vehicle crashing into an innocent bystander vehicle); see also O'Connor v City of New York, 280 AD2d 309 (1st Dep't 2001) (affirming the jury's finding of recklessness where the plaintiff's fellow police officer approached an intersection at high speed against the flow of traffic without giving any type of warning); Baines v City of New York, 269 AD2d 309 (1st Dep't 2000) (affirming the jury's finding of recklessness where the police officer blocked a lane of traffic and made no attempt to avoid the collision); Krulik v County of Suffolk, 62 AD3d 669 (2nd Dep't 2009) (finding triable issues as to police officer's recklessness where the officer's vehicle entered an intersection without first slowing down and activating the siren and emergency lights).
In this case, the City argues that Urena and Ramirez operated the RMP with the emergency lights and siren activated. According to the City, when on the 177th Street, Urena made a left onto the Fort Washington Avenue through green light, and Tatishev failed to yield to the RMP when crossing the Fort Washington Ave. Despite Urena's best efforts to stop the RMP, it nonetheless slid into Tatishev, knocking him down onto the ground. Hence, the City concludes, there is no evidence to suggest that Urena's actions were reckless.
Review of the evidence submitted, however, raises an issue of fact as to whether Urena recklessly operated the RMP as he made the turn onto the Fort Washington Ave. Both Urena and Ramirez testified that the RMP came to a complete stop before turning onto the Fort Washington Ave and made a turn at a very low speed of no more than five miles an hour, according to Urena, or ten miles an hour, according to Ramirez. This rate of turn speed was low enough for the RMP to come to a complete stop at any time. Ramirez testified that while it was dark outside and a light rain drizzled, he saw Tatishev crossing the street in the crosswalk as the RMP was poised to start turning, and Tatishev remained in Ramirez's line of sight throughout the turn.
Ramirez further testified that the accident was completely unexpected and that he did not alert Urena to stop, because he thought Urena also observed Tatishev. After the accident, Urena admitted to Ramirez that he did not see the pedestrian. At his deposition, however, Urena testified that he saw Tatishev, but noticed him too late to stop in time.
This evidence raises an issue of fact as to whether Urena's failure to see Tatishev crossing the street and to avoid the accident, despite ample opportunity to do so, was reckless. Absent a reasonable explanation for the accident, the Court cannot find as a matter of law that Urena's driving the RMP into Tatishev was simply "a momentary lapse in judgment," devoid of reckless conduct. C.f. Szczerbiak v Pilat, 90 NY2d 553, 557 (1997).
Further, Tatishev disputes the City's claim that the RMP had the emergency lights and sirens activated as it entered the subject intersection. Tatishev testified that he neither heard the sirens nor saw the RMP's flashing lights before he was hit. The issue as to the activated emergency lights and sirens is significant to whether Urena alerted Tatishev to the emergency operation. See O'Connor v City of New York, 280 AD2d 309 (1st Dep't 2001); see also McCarthy v City of New York, 250 AD2d 654, 655 (2nd Dep't 1998); VTL § 1104(c). These outstanding factual issues as to Urena's violation of VTL § 1104(e) warrant denial of the City's summary judgment motion.
While the City moved to dismiss plaintiffs' complaint in its entirety, it only discussed the proposed dismissal of the first and third causes of action, and did not discuss plaintiffs' second cause of action for negligent hiring, supervision, and retention. Therefore, the Court does not address plaintiffs' second cause of action.
In accordance with the foregoing, it is
ORDERED that the motion by defendants the City of New York and Police Officer Simon Urena for summary judgment dismissing plaintiffs' complaint is denied in its entirety; and it is further
ORDERED that plaintiffs Sergey Tatishev and Taysia Kim Tatishev shall serve a copy of this decision and order upon defendants and the Clerk of Trial Support (60 Centre St., Rm. 158), who shall schedule this action for trial.
This constitutes the decision and order of the Court.
Dated: New York, New York
August 26, 2009
ENTER
Hon. Saliann Scarpulla, J.S.C.