Opinion
23256/99.
Decided April 3, 2007.
Plaintiff was represented by Francesco Pomara, Jr., Esq. of Mallilo Grossman, Esqs.
Defendants Budget Rent A Car, Inc. and Rakheem Mortise were represented by Andrew D. Hallerman, Esq. of Carfora Klar Gallo Vitucci Pinter Cogan, LLP.
Defendant the City of New York was represented by Joseph Salvo, Esq. of the Corporation Counsel of the City of New York.
On July 9, 1998, plaintiff Arthur S. Zillas, a City police officer, was a passenger in a police vehicle driven by Officer Michael Pisciotta, when the vehicle collided with another police vehicle, driven by Officer William Rock, at the intersection of Pennsylvania and Hegeman Avenues in Brooklyn. Plaintiff's vehicle had been dispatched to provide assistance to another officer who was "trying to stop a car that was driving erratic." ( See Examination Before Trial of Arthur S. Zillas, Exhibit E to Affirmation in Support, at 23.) There is no evidence in admissible form as to whether Officer Rock's vehicle was responding to the same request for assistance.
Although it cannot be determined from the pleadings, or indeed from any evidence submitted on this motion, it is undisputed that at the time of the collision Plaintiff's vehicle was responding to a request for assistance by an officer driving a third police vehicle, Michael Mulrooney, and that the car that Officer Mulrooney was "trying to stop" was operated by defendant Rakheem Mortise and owned by defendant Budget Rent A Car, Inc. It is also undisputed that neither Officer Mulrooney's vehicle nor the Budget/Mortise vehicle was at the site of the collision or made contact with either of the police vehicles that collided.
Plaintiff's Verified Complaint asserts a single cause of action against the City, the Police Department, Officers Rock and Pisciotta, and Budget and Mortise, alleging in one paragraph "defendants' negligence." (See Verified Complaint, para. TWENTY-FIFTH.) Neither the Verified Complaint, nor the Verified Bill of Particulars, nor even the Supplemental Verified Bill of Particulars served after this motion was made, asserts any cause of action against the moving defendants, Budget and Mortise, other than negligence. Those defendants move to dismiss pursuant to CPLR 3211 (a) (7) and CPLR 3212.
This action has been pending for almost nine years, and it is not clear from the parties' submissions on this motion that any significant disclosure has occurred other than Plaintiff's examination before trial. Because of the long pendency of the action and the Court's concerns about the adequacy of the parties' initial submissions, the Court invited further briefing, and Plaintiff and Budget/Mortise accepted the invitation. Neither the City nor the defendant police officers have submitted any papers on the motion nor otherwise taken a position, with the consequence that available additional evidence is not before the Court. That additional evidence would include the documents that are attached to Plaintiff's opposition, but are not in admissible form.
The starting point for analysis, at least as established by the moving defendants, is the common-law "firefighter's rule" that "barred a police officer from recovering in tort for injuries suffered in the line of duty." ( See Williams v City of New York, 2 NY3d 352, 363; see also Santangelo v State of New York, 71 NY2d 393, 397.) Because Plaintiff was allegedly injured in a motor vehicle collision while responding to an emergency call, his action for negligence is barred by the firefighter's rule, except to the extent that the rule has been abrogated by statute. ( See Cooper v City of New York, 81 NY2d 584, 588-92.)
"In 1989, the Legislature modified the common law by adding section 205-e to the General Municipal Law . . .; and in 1996, the Legislature largely abolishe[d]' the common law by enacting section 11-106 of the General Obligations Law." (Williams v City of New York, 2 NY3d at 363 (quoting Giuffrida v Citibank Corp, 100 NY2d 72, 78 (2003)].) Putting aside General Municipal Law § 205-e, addressed below, by reason of General Obligations Law § 11-106, "a police officer can assert a common-law tort claim against the general public" for "work injuries that occur in the line of duty." (See id.)
Plaintiff is correct that the moving defendants make no showing that defendant Mortise was not negligent in his operation of the Budget vehicle. But Plaintiff's deposition testimony, attached to the motion papers, shows, what all concede to be true, that the only vehicles that collided, or were present at the intersection where the collision occurred, were the police vehicles operated, respectively, by defendants Pisciotta and Rock. At the very least prima facie, therefore, even if defendant Mortise was negligent in his operation of the Budget vehicle, his negligence was not a proximate cause of the collision.
In his opposition, Plaintiff proffers a number of documents concerning the facts and circumstances of the events of July 9, 1998, but none are authenticated or otherwise in admissible form. It is clear, however, from Plaintiff's uncontradicted deposition testimony and other undisputed facts that at the time of the collision Plaintiff's vehicle was responding to a request for assistance, made through a police dispatcher, from Officer Mulrooney, who was "trying to stop [the Budget/Mortise] car that was driving erratic." Since Mr. Mortise's negligence must be assumed on this motion in the absence of any evidentiary showing to the contrary by the moving defendants, the question becomes whether Plaintiff has established a triable issue on proximate cause.
That question is answered by the Third Department's decision in Aldrich v Sampier ( 2 AD3d 1101 [3rd Dept 2003].) There, a deputy sheriff driving north on a two-lane road saw a reckless driver traveling south. The deputy pulled to the right shoulder, and attempted to make a u-turn to pursue the reckless driver, when his car was hit by a driver travelling north behind him. The deputy sued the reckless driver and the driver who hit him, but the court dismissed on summary judgment the common-law negligence claim against the driver whose vehicle hit the deputy's. The Court also dismissed the common-law negligence claim against the reckless driver, finding that his "reckless driving cannot be considered a proximate cause of [the deputy's] accident." (See id., at 1104.) The deputy's actions and the actions of the driver who hit him "constituted intervening, superceding events which severed the ties necessary for proximate causation." (See id.)
Although not further articulated by the Third Department, its conclusion is consistent with general principles that allow a determination of lack of proximate cause as a matter of law where "independent intervening acts . . . operate upon but do not flow from the original negligence," and where an "intervening act [is] divorced from and not the foreseeable risk associated with the original negligence." (See Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315-16.)
Plaintiff alleges as bases for finding defendant Mortise negligent a host of violations of the Vehicle and Traffic Law, including provisions on traffic control devices (§ 1110 [a]), driving on the right side of the roadway (§ 1120), passing (§ 1121), and speeding (§ 1180), and, again, for purposes of this motion the Court assumes the violations. Plaintiff must still, however, establish proximate cause based on that negligence. (See Crisano v Spellman, 294 AD2d 392, 392 [2nd Dept 2002]; Tepoz v Sosa, 241 AD2d 449, 449 [2nd Dept 1997].) The risk of collision between two vehicles at a different time and place cannot fairly be considered among those addressed by the cited statutory provisions, any more than that risk would be considered among those addressed by the prohibition against reckless driving presented in Aldrich v Sampier ( 2 AD3d 1101.)
"In an action to recover damages under General Municipal Law § 205-[e], the pleadings must specify or identify the statutes, ordinances, rules, orders, or requirements with which the defendant allegedly failed to comply, describe the manner in which the plaintiff's injuries occurred, and must set forth the facts from which it may be inferred that the defendant's negligence directly or indirectly caused harm to the plaintiff." (Sclafani v City of New York, 271 AD2d 430, 430 [2nd Dept 2000].) Plaintiff's Verified Complaint and Verified Bill of Particulars fail in these respects, and are, therefore, "legally insufficient" to assert the statutory cause of action. (See id., at 431.) The Supplemental Verified Bill of Particulars served with Plaintiff's opposition to this motion is also insufficient; it makes no reference to § 205-e, and cannot be considered an amplification of a cause of action that does not appear in the original pleadings. (See Balsamo v City of New York, 287 AD2d 22, 27 [2nd Dept 2001].)
Recognizing that, as a general proposition, leave to amend to add a § 205-e cause of action might be granted (see Reilly v City of New York, 271 AD2d 425, 426 [2nd Dept 2000]), and putting aside the statute of limitations question that neither party has addressed (compare Sclafani v City of New York, 271 AD2d at 431, with Gibbons v Ostrow, 234 AD2d 415, 416 [2nd Dept 1996]), the Court must, nonetheless, conclude that leave to amend here must be denied.
The Court will assume that, upon such an application, Plaintiff would make a sufficient evidentiary showing (see Butt v New York Medical College, 7 AD3d 744, 745 [2nd Dept 2004]) that defendant Mortise violated one or more provisions of the Vehicle and Traffic Law that would serve as a predicate for a § 205-e cause of action (see Gonzalez v Iocovello, 93 NY2d 539, 550-51.) The parties have addressed on this motion the legal viability of such a cause of action, and the Court must conclude that an amendment to assert it would be "patently devoid of merit." (See Matter of Roberts v Borg, 35 AD3d 617, 618 [2nd Dept 2006].)
Section 205-e gives a police officer "a right of action against any person whose negligent failure to comply with a government provision either directly or indirectly' results in injury or death." (See Guiffrida v Citibank Corp., 100 NY2d 72, 80 [quoting Gen. Mun. L. § 205-e] [emphasis in original].) "[T]he substantial caselaw that has developed on the subject holds that a plaintiff need only establish a practical or reasonable connection' between the statutory or regulatory violation and the claimed injury." (See id., at 81 [quoting Mullen v Zoebe, Inc., 86 NY2d 135, 140 (1995)].)
A "practical or reasonable connection" is not the same as "proximate cause," and requires a "somewhat less than direct and unimpeded sequence of events resulting in injury." (See id., at 80-81.) A "but for" connection alone is not enough (see Kenavan v City of New York, 267 AD2d 353, 356 [2nd Dept 1999],) and nothing in the caselaw suggests that the strength or absence of a relationship between the risk addressed by the government provision and the allegedly resulting harm, important in determining proximate cause, is not also important to a practical and reasonable connection.
Returning to Aldrich v Sampier ( 2 AD3d 1101), the authority most closely on point, the Third Department denied summary judgment on the deputy sheriff's § 205-e cause of action against the reckless driver. The court held that "an indirect connection between [the reckless driver's] statutory violation and [the deputy sheriff's] injuries was raised, creating a jury question regarding the sufficiency of that connection." (See id., at 1103-04.) There are material differences, however, between that case and this one.
In Aldrich, the deputy sheriff was in direct and immediate pursuit of a vehicle that was being operated in violation of law in the deputy's presence. Here, apparently Officer Michael Mulrooney was in direct and immediate pursuit, and placed a call for assistance that, in turn, was relayed to Plaintiff's vehicle, and perhaps Officer Rock's vehicle. Although there is no evidence as to the precise distance, according to Plaintiff's deposition testimony neither the Budget/Mortise vehicle nor Officer Mulrooney's vehicle was present at the intersection where the collision occurred, nor was either vehicle within vision of Plaintiff's vehicle. In short, again according to Plaintiff's own testimony, Plaintiff's vehicle was not in pursuit of the Budget/Mortise vehicle, and the collision occurred at some distance from it, as a result of the actions of either Officer Pisciotta or Officer Rock or both. Based upon these facts, the Court concludes as a matter of law that there was no "practical or reasonable connection" between defendant Mortise's violation of the Vehicle and Traffic Code and the collision between the two police vehicles at the intersection of Pennsylvania and Hegeman Avenues.
The Court notes a memorandum dated July 9, 1998 from the Executive Officer, 75th Precinct, to the Chief of Department, which is proferred by Plaintiff with its opposition. Although not in admissible form, no part of the document is disclaimed by Plaintiff. According to the memorandum, Officer Mulrooney was driving an unmarked vehicle when he observed defendant Mortise driving recklessly. He followed the Budget/Mortise vehicle, and requested assistance, but "did not use any emergency lights until the time of the vehicle stop by marked units." At the time of the collision, moreover, the Budget/Mortise vehicle was already stopped (at the intersection of Junius Street and Linden Blvd. according to another document), and the marked units that stopped the vehicle "terminated the pursuit over the 75 Precinct Division Radio," but "it [did] not appear to have been transmitted over the Special Operations Division frequency at the time of the accident."
The Court notes these statements in stressing the absence of any evidence that defendant Mortise was aware that he was being pursued, or even observed, by any law enforcement personnel, so as to alert him to a possibility of any injury to law enforcement personnel resulting, not from his driving, but from collision with a third vehicle; and in stressing the number of acts and omissions, by various persons other than the direct participants, that brought Plaintiff's and Officer Rock's vehicles to the Pennsylvania/Hegeman intersection.
The motion of defendants Budget Rent A Car, Inc. and Rahkeem Mortise (Calendar No. 31) is granted, and the Verified Complaint is dismissed as against them.
At oral argument, Plaintiff acknowledged that, if the Budget/Mortise motion was granted, his motion to compel disclosure (Motion Calendar No. 32) would be rendered moot, and the motion is, therefore, deemed withdrawn.