Jason Pelletier, Appellant,v.Brittany Lahm et al., Respondents.BriefN.Y.October 15, 2014To be Argued by: MATTHEW J. ZIZZAMIA (Time Requested: 15 Minutes) APL 2014-00189 Rockland County Clerk’s Index No. 002910/10 Appellate Division–Second Department Docket No. 2011-09038 Court of Appeals of the State of New York JASON PELLETIER, Plaintiff-Appellant, – against – BRITTANY LAHM and PHILIP LAHM, Defendants-Respondents. LETTER BRIEF FOR DEFENDANTS-RESPONDENTS HANNUM FERETIC PRENDERGAST & MERLINO, LLC Attorneys for Defendants-Respondents One Exchange Plaza 55 Broadway, Suite 202 New York, New York 10006 Tel.: (212) 530-3900 Fax: (212) 530-3910 Dated: September 9, 2014 HANNUM FERETIC PRENDERGAST & MERLINO, LLC ATTORNEYS AT LAW One Exchange Plaza 55 Broadway, Suite 202 New York, NY 10006 (212) 530-3900 (212) 530-3910 Facsimile WWW.HFPMLAW.COM MATTHEW J. ZIZZAMIA, ESQ. DIRECT DIAL: 212-530-3921 E-MAIL: MZIZZAMIA@HFPMLAW.COM September 9, 2014 New York State Court of Appeals Clerk’s Office 20 Eagle Street Albany, New York 12207-1095 Attn: Andrew Klein, Chief Clerk RE: PELLETIER V. LAHM Index Number: 2014-00189 Dear Honorable Clerk: The defendants-respondents, Brittany Lahm and Philip Lahm, (“the defendants”) respectfully submit this correspondence pursuant to the Court of Appeals Rules of Practice Section 500.11, and in response to the letter brief submitted on behalf of the plaintiff, Jason Pelletier (“the plaintiff”). PRELIMINARY STATEMENT This appeal arises from an affirmance by the Appellate Division, Second Department of a jury verdict in favor of the defendants. Following a jury trial that featured the sworn testimony of both the plaintiff and defendant Brittany Lahm, the defendants requested that the trial judge charged the jury on the emergency doctrine. The trial Court concluded that, considering the evidence in the light most favorable to the party requesting the charge, a triable question of fact existed as to the existence of a qualifying emergency that warranted the charge. The jury thereafter returned a defense verdict, and the trial judge denied the plaintiff’s 2 motion to set aside the verdict as against the weight of the evidence. The plaintiff then sought reversal of the verdict and the subsequent decision in the Appellate Division, where both the verdict and the denial of the motion to set it aside were ultimately affirmed. In short, the trial judge, a judicial panel of the Appellate Division, Second Department, and most importantly, six Rockland County residents have all concluded that considered in the light most favorable to Ms. Lahm, a triable question of fact exists as to whether the teenage girl was faced with a sudden and unforeseen occurrence not of her own making when her bikini strings were suddenly untied by a backseat passenger. In seeking further review of this decision, the plaintiff is again reiterating the strikingly callous, factually unsupported and legally inaccurate position that the teenage girl whose bikini string was suddenly untied while driving a motor vehicle, was in fact not faced with a sudden and unforeseen occurrence as matter of law, when considered in the light most favorable to her. Because this is an inaccurate statement of the law, the plaintiff is incorrect in contending that the decision impermissibly extends the scope of the emergency doctrine. The plaintiff is therefore unable to establish that the decision upholding the verdict on appeal constituted reversible error, and the appeal should accordingly be dismissed in all respects. STATEMENT OF FACTS The position advocated by the plaintiff on appeal, which it should be noted is in direct and stark contradiction to the plaintiff’s sworn testimony at trial, is predicated entirely on a gross mischaracterization of the evidence in the record. The underlying incident occurred when Brandon Berman, a backseat passenger in the defendants’ vehicle, suddenly and expectedly untied Ms. Lahm’s bikini strings as she was driving, causing her to reflexively remove her hands from the wheel for a “split second” in an effort to cover herself. (R. 94). Over the course of the car ride, Mr. Berman sporadically engaged in two, unrelated acts, that the plaintiff has transparently sought to connect to the pulling of the string in an effort to suggest that the final act was somehow foreseeable. To demonstrate the factual and legal fallacy of that position, a detailed examination of the actual testimony of the parties is therefore warranted to provide an accurate recitation of the facts. In an extensive factual summary, the plaintiff has represented to this Court that the pulling of the defendant’s bikini string was the culmination of an ongoing, uninterrupted pattern of conduct that created a legal duty on the defendant to somehow persuade Mr. Berman to desist, and which rendered the pulling of the 3 bikini string of a teenage girl a foreseeable event that was of her own making. This is an egregious and regrettable instance of victim blaming, and is also factually inaccurate. The Record on Appeal unequivocally demonstrates that Ms. Lahm was unable to personally observe the actions of the supposedly distracting passenger in the backseat, who spit on the side of the car, and opened an umbrella in the car to clean it. (R. 74). When he did so, Ms. Lahm promptly responded by closing and locking the passenger’s window. (R. 75). Incidentally, the plaintiff, who was also seated in the back seat, testified in open court that he too did not find the conduct distracting, and noted only that opening an umbrella in a car was bad luck. (R. 191). According to the plaintiff, the passenger immediately closed the umbrella and desisted his conduct. (R. 191). At some unspecified time thereafter, Mr. Berman lifted his feet toward the front seat, and immediately removed them when Ms. Lahm and the front seat passenger “told him to stop”. (R. 80). Again, Ms. Lahm denied that the behavior was distracting, and reiterated that Mr. Berman himself was not a distraction. (R. 83). As such, she had no reason to remove her hands from the wheel and did not do so. (R. 82). The routine nature of the behavior is further evidenced by the testimony of the plaintiff, who was busy sending text messages at the time, and contrary to the indicting description of this conduct offered by his counsel, did not even recall Mr. Berman lifting his feet. (R. 174, 193). This point is corroborated by the testimony of Ms. Lahm, who said nothing to Mr. Berman concerning his conduct. (R. 132). It should be noted that these two prior acts consisted of nothing more remarkable than opening an umbrella and the lifting of feet, and were accorded no significance of any kind by either the plaintiff or the defendant. On neither occasion did Mr. Berman assault the defendant or give her reason to fear an imminent threat of bodily harm. However, Ms. Lahm thereafter faced what the plaintiff quoted in his letter submission as “another distraction”, which is a plain misquotation. In fact, on page 83 of the Record, cited by the plaintiff, Ms. Lahm testified that she maintained her speed “because he wasn’t really distracting besides the fact that his feet smelled.” (R. 83). The distraction referred to occurred when Mr. Berman unexpectedly untied the bottom string of Ms. Lahm’s bikini. She properly kept her hands on the wheel, and leaned forward while the front seat passenger retied the string. (R. 87). As she did so, no more than three seconds later, Mr. Berman untied the top string, and Ms. Lahm felt the bikini top loosen as it started to come off. (R. 93). Ms. Lahm described the act thusly: “It was instant. It – he pulled it really quick. It wasn’t 4 like a slow pull to see how long it would take to react…It was an instant reaction.” (R. 144-145). In response to this patently criminal act, as per the testimony of Ms. Lahm in the Record on appeal, Ms. Lahm had an “instant reaction” because she “didn’t know it was coming”, and removed her hand from the wheel for a “split second” to cover herself, which she described as the instinctive reaction “when a girl’s top is coming off.” (R. 94-95, 138, 149). Significantly, and again in complete contrast to the portrayal of events offered by his counsel to this Honorable Court, Mr. Pelletier fully corroborated Ms. Lahm’s description of the event, stating he “wasn’t expecting” Mr. Berman to assault Ms. Lahm, was “surprised by it” and “had no idea it was going to happen.” (R. 196-197). Finally, some clarification must necessarily be taken with respect to some of the more egregiously inaccurate “statements” made in the plaintiff’s statement. On page 6, the plaintiff states that Ms. Lahm “admitted” that she was “aware of decedent’s worsening erratic behavior” and provides a string citation to the Record. However, that description exists only in the statement of counsel, and Ms. Lahm made no such characterization on any of the cited pages. In addition, in support of the contention that the culminating act was foreseeable, the plaintiff cites not to the Record, but amazingly to the respondents’ brief in the Appellate Division. In that instance, the plaintiff represents on page 6 of the statement that, since the defendants noted in the brief that reasonable minds could conceivably disagree as to the characterization of Mr. Berman’s conduct, the final pulling of the string must have been foreseeable. The actual citation to a statement to counsel is evident of the utter absence of supporting authority in the Record and is plainly entitled to no evidentiary weight or consideration by this Court. This conclusion is further support by the actual testimony of the parties cited herein, including that of Ms. Lahm, who reiterated that when her bikini string was pulled, “I didn’t know it was coming, I didn’t think it was going to happen again.” (R. 148). In sum, the passenger behavior that the plaintiff has taken such great pains to characterize as an uninterrupted chain of disruptive conduct, in fact consisted of two trivial pranks over the course of approximately twenty minutes, that neither the defendant nor the plaintiff considered to be distracting or disruptive either at the time they occurred or at the time of trial years later. It is not disputed that Mr. Berman opened an umbrella, and conceded that he placed his feet on the center 5 console, as it is wholly irrelevant and entirely unrelated to the subsequent acts of untying Ms. Lahm’s bikini strings. ARGUMENT POINT I CONSIDERED IN THE LIGHT MOST FAVORABLE TO MS. LAHM, A TRIABLE QUESTION OF FACT EXISTED AS TO THE EXISTENCE OF A SUDDEN AND UNFORESEEN OCCURRENCE NOT OF HER OWN MAKING THAT WARRANTED THE EMERGENCY CHARGE The propriety of the emergency charge in this matter requires an application of the controlling authority setting forth the limits of the emergency doctrine, most notably Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d 334, 750 N.E.2d 36 (2001), and Lifson v. City of Syracuse, 17 N.Y.3d 492, 934 N.Y.S.2d 38, 958 N.E.2d 72 (2011). However, the determination of whether the charge was appropriate under the circumstances turns on the evidence of the conduct preceding the occurrence, and requires the utmost scrutiny of the characterization of the testimony of the parties. For that reason, it must be reiterated that the dispute primarily involves the gross mischaracterization of these acts by Mr. Pelletier’s counsel, who directly contradicts the sworn testimony of the plaintiff by attempting to persuade this Court that two meaningless acts that were attributed no distracting characteristics by Mr. Pelletier, and which were adequately and reasonably handled by the defendant, were in fact part of an ongoing series of uninterrupted, continuous and escalating conduct that somehow made the eventual pulling of the bikini string a foreseeable act. That position is plainly factually inaccurate, as the opening of the umbrella was handled by locking the window, and neither Mr. Pelletier nor Ms. Lahm considered it to be distracting. Similarly, the act of placing feet on the center console was corrected when Ms. Lahm told Mr. Berman to remove them, and he complied. Notwithstanding the uniform sworn testimony of Mr. Pelletier and Ms. Lahm that the prior conduct of Mr. Berman amounted to nothing more than behavior that neither considered distracting and which did not in any respect involve any contact with Ms. Lahm’s person, it is nevertheless represented to this Court that opening an umbrella and lifting feet made the eventual sexual assault of Ms. Lahm a foreseeable act of her own making, for which she should be held 6 accountable. It is further represented that even when considering this evidence in the light most favorable to Ms. Lahm, the Appellate Division committed reversible error as a matter of law by “impermissibly” expanding the scope of a legal doctrine that provides some flexibility in the reaction of an individual to a sudden and unforeseen occurrence. But as intuitively observed by during oral argument on appeal, there is a qualitative difference between opening an umbrella and raising one’s foot, and untying the bikini string of a teenage girl driving a motor vehicle. The latter is a criminal act which occurred suddenly, unexpectedly, and caused Ms. Lahm to react instinctively and naturally in an immediate effort to cover herself. Counsel for the plaintiff repeatedly points out that the untying of Ms. Lahm’s bikini string did not result in an actual exposure of her breasts, and thus did not warrant the reaction taken by the defendant. That is an exceptionally callous position to adopt, and this rather repugnant instance of victim blaming does not undermine the reasonableness of the defendant’s response. The plaintiff has in this instance improperly usurped the position of the jury and has deigned to dictate to Ms. Lahm and to this Court the proper response of a teenage girl who has her bikini top untied. Whether the act resulted in actual physical exposure of her breasts or not, it is not so far removed from common sense and logic to fear such exposure when the string holding one’s covering is untied as to portray Ms. Lahm somehow responsible for her own physical exposure. It must therefore be reiterated that the plaintiff does not contend that a question of fact exists as to the reasonableness of Ms. Lahm’s response, as to do so would concede that the emergency charge was proper. On the contrary, the plaintiff submits that the decision of the trial Court and the Appellate Division constituted reversible error as a matter of law, because it was unreasonable per se for Ms. Lahm, without the opportunity for reflection and aforethought, to instinctively and reflexively attempt to cover herself when suddenly confronted with a falling bikini top. In other words, even when considering all evidence and testimony cited herein and in the Record in the light most favorable to Ms. Lahm, the plaintiff insists that under the proper application of controlling New York jurisprudence, there can be and is no question of fact as to whether this teenage girl faced a sudden and unforeseen occurrence when she “naturally” and “instinctively” moved to cover herself for no more than one second when she was suddenly and unexpectedly assaulted. It must also be reiterated that the prior conduct of Mr. Berman, that Mr. Pelletier and Ms. Lahm both denied was in any way distracting, involved any 7 touching of Ms. Lahm in any semblance or form, or had any sexual component whatsoever. It is respectfully submitted that reasonable minds can disagree as to whether Ms. Lahm was faced with a sudden and unforeseen occurrence at the time of her assault, when considering the evidence in the light most favorable to her, which is precisely the point, and precisely the reason why the emergency doctrine was properly charged to the jury. The inescapable truth remains that when considering the evidence in the manner most favorable to Ms Lahm, the defendant adequately responded to Mr. Berman opening an umbrella and lifting his feet, and did so while continue to drive in a capable manner. When considering the evidence in the light most favorable to Ms. Lahm, she was not faced with an onslaught of such egregious and distracting conduct as to render her responsible for the instinctive reaction to her own sexual assault. And when considering the evidence in the light most favorable to Ms. Lahm, Mr. Berman did not engage in such outrageous conduct as to render the pulling of her bikini string a foreseeable occurrence that was of her own making as a matter of law. On the contrary, as explicitly testified by both Ms. Lahm and Mr. Pelletier, the pulling of the string was an unexpected act that neither saw coming. That Mr. Pelletier’s counsel insists on blaming the victim for an innately instinctive response upon being criminally victimized in spite of Mr. Pelletier’s explicit and direct testimony to the contrary is remarkable at this stage of the proceeding, but no more persuasive for the effort. As succinctly observed by Mr. Pelletier, the pulling of the bikini string was an act that he “had no idea” was going to occur. (R. 197). Mr. Pelletier plainly did not reach this conclusion because Mr. Berman engaged in such outrageous continuous conduct as to render the pulling of the string the foreseeable final act of such conduct as a matter of law. On the contrary, despite the excessive efforts of counsel to falsely portray the prior conduct as consistent with the final assault, the pulling of the bikini string in fact constituted a sudden and unexpected occurrence based on an objective assessment of the evidence. And yet, an objective assessment is not the standard employed by the Court in determining the existence of a threshold emergency. While that conclusion can plainly be reached in this matter from an objective analysis, given the unequivocally uniform testimony of the parties, it remains that the determination of the trial judge as to the existence of a qualifying emergency is to be made upon a consideration of the evidence in the light most favorable to the requesting party. Rivera v. New York City Transit Authority, 77 N.Y.2d 322, 567 N.Y.S.2d 629, 569 N.E.2d 432 (1991); Kuci v. Manhattan and Bronx Surface Transit Operating Authority, 88 N.Y.2d 923, 646 N.Y.S.2d 923, 669 N.E.2d 1110 (1996). 8 In this matter, considering the above evidence in the light most favorable to Ms. Lahm, there can be no dispute that, at a minimum, a triable question of fact existed as to whether this teenage girl faced a sudden and unforeseen occurrence when her bikini top was suddenly untied and exposed. This conclusion is supported by a good faith consideration of the nature of the conduct that preceded the assault, as well as the deposition testimony of the parties, as both plaintiff and defendant categorically denied that the prior conduct made the assault foreseeable in any way. Stated simply, neither of the two prior acts of Mr. Berman had any meaningful or qualitative connection to his sudden pulling of her bikini strings. Neither act was deemed distracting by Mr. Pelletier or Ms. Lahm, who were “surprised” by the “sudden” act of the passenger. (R. 197). For that reason, to demonstrate that this Court impermissibly expanded the scope of the emergency doctrine, the plaintiff must necessarily demonstrate that the situation facing Ms. Lahm at the time she reflexively covered herself was not a “sudden or unexpected circumstance” when viewed in the light most favorable to her as a matter of law. The well settled authority of this Court holds that the emergency doctrine is applicable where such a situation reasonably causes the defendant “to be so disturbed” that a quick action that is prudent in its context is taken without the opportunity to take time to reflect on alternative courses of conduct. Davis v. Metropolitan Transit Authority, 92 A.D.3d 825, 938 N.Y.S.2d 616 (2nd Dept. 2012); Evans v. Bosl, 75 A.D.3d 491, 905 N.Y.S.2d 254 (2nd Dept. 2010); Miloscia v. New York City Board of Education, 70 A.D.3d 904, 896 N.Y.S.2d 109 (2nd Dept. 2010). However, to satisfy the burden set forth above, the plaintiff must necessarily argue and prove that the decision should be made as a matter of law, because the actions of Ms. Lahm by definition could not have constituted a reasonable reaction to an emergency with no exceptions as a matter of law. That burden requires the plaintiff to prove that, taken in the light most favorable to Ms. Lahm, this Court could not have properly concluded that the instant and sudden assault of Ms. Lahm, to which she instinctively reacted by covering herself for no more than one second, did not constitute a triable issue as to whether Mr. Berman’s conduct was “sudden and unexpected”, whether Ms. Lahm made a “quick decision” because she was “so disturbed”, and whether Ms. Lahm’s reaction was “prudent”, as defined by the above-cited cases. Since this language almost perfectly encapsulates the series of events testified to by Mr. Pelletier and Mr. Lahm, the plaintiff obviously cannot demonstrate that there was no qualifying emergency as a matter of law, and that Ms. Lahm did not react as a reasonably prudent person faced with the sudden occurrence of the passenger’s making. 9 The position advocated in the plaintiff’s motion plainly lacks any support from the testimony of the parties, and similarly derives no assistance from the line of cases cited in the supporting memorandum. To prop up the contention that Ms. Lahm should have known she would be sexually assaulted because someone opened an umbrella and lifted his feet, the plaintiff focuses exclusively on the holdings in Caristo and Lifson, while distancing himself from the holding in Johnson v. Ingalls, 95 A.D.3d 1398 (3rd Dept. 2012). Amazingly, in the affirmation in support of the motion for leave to appeal to this Honorable Court, the plaintiff relied heavily on Johnson, describing the decision as “the only other case that could be found involving conduct that occurred within a vehicle by another individual that formed the basis of the application of the emergency doctrine”. In opposition to the motion, the defendants demonstrated that in Johnson, the Court actually found the emergency doctrine applicable, where a back seat passenger distracted the plaintiff over four to five seconds. Despite the obvious parallels to the instant matter, the plaintiff previously saw fit to represent that Johnson supports the position that the Appellate Division impermissibly expanded the emergency doctrine to apply to a criminal assault on a driver by a passenger that lasted only an “instant”, as testified by Ms. Lahm, before distinguishing in his statement to this Honorable Court. In that statement, the plaintiff again fails entirely to address the holding in Bello v. New York City Transit Authority, 12 A.D.3d 58 (2nd Dept. 2004). In Bello, the Appellate Division applied the emergency doctrine to a case involving distraction of a bus driver caused by passengers panicking from what they feared was an explosive device on the bus. The Second Department concluded that, even though the passenger who left the device on the bus had repeatedly boarded and left the bus over a protracted period of time, the driver nevertheless reacted to a sudden and unexpected occurrence, despite the ongoing and continuous pattern of conduct of the passenger, and applied the emergency doctrine accordingly. In sum, Johnson, which was previously cited in support of the plaintiff’s position, and Bello both applied the emergency doctrine to cases involving driver distraction. In both Johnson and Bello, the distraction lasted significantly longer than the assault on Ms. Lahm in the instant matter, yet the plaintiff nevertheless advocates that the similar application of the doctrine to Ms. Lahm’s reaction when considering the evidence in the light most favorable to her “conflicts with the judicial precedence of this State”. However, the absolute paucity of any supporting evidence or judicial authority renders the plaintiff’s argument invalid on its face. Not only has the plaintiff been forced to resort to the grossest example 10 of mischaracterization of the evidence in the Record, the plaintiff has also offered absolutely no supporting authority for the extreme position that these facts in the light most favorable to Ms. Lahm did not constitute an emergency as a matter of law. Instead, the plaintiff has resorted to an appeal to the Court of Appeals holdings in Caristo and Lifson, and again attempted to shoehorn the facts of this matter to these decisions. However, an honest reading of the cases quickly demonstrates the ease with which they may be distinguished, and the plaintiff’s citation of these cases in support is predicated on the continued gross misrepresentation of the facts in the Record. Caristo, the seminal case examining the scope of the emergency doctrine held it to be inapplicable to an accident caused by an icy roadway, which was found not to constitute a qualifying emergency. However, in reaching that conclusion, this Honorable Court specifically noted that the condition could not rationally be considered unexpected, given the undisputed evidence that frozen rain had been falling for a period of thirty minutes prior to the incident. In other words, the defendant in Caristo had a full half-hour to become aware of the presence of ice on the roadway and respond accordingly. This Honorable Court concluded that the presence of ice could not reasonably be considered “sudden” or unexpected, given the thirty-minute period of time that preceded it. Similarly, in Lifson, the defendant struck a pedestrian with his motor vehicle while leaving work, and contended that he was distracted from seeing her by glare from a setting sun. This Court again properly concluded that the presence of a setting sun could not be considered sudden or unexpected, as the sun had in fact set in the same direction every day of the defendant’s life, and could not reasonably be said to have done so in a sudden manner, inasmuch as it takes all day. Both Caristo and Lifson offer the same level of support to the argument as Johnson and Bello, because boiled down to its core, the plaintiff’s entire argument rests on the factually inaccurate and purely disingenuous premise that the distraction that caused Ms. Lahm to instinctively cover herself for a split second lasted fifteen to twenty minutes. To do so, the plaintiff argues that the distraction consisted of an ongoing, continuous course of disruptive behavior by a backseat passenger that culminated with the untying of the defendant’s bikini string. However, a plain reading of the Record, the sworn trial testimony of the parties, the oral argument on appeal, and the decisions of the lower Court and the Appellate Division all refute this contention. To accept the argument offered by the plaintiff herein, it is necessary to reject the plaintiff s own sworn testimony, as well as that of Ms. Lahm and all other evidence in the Record. The fact of the matter is, as concluded by the trial judge, the Appellate Division, and six Rockland County jurors, that when considered in the light most favorable to Ms. Lahm, as the Court is required to do, there is, at a minimum, a triable question as to whether the pulling of this teenage girl's bikini top was a sudden and unexpected occurrence, in consideration of the prior conduct of Mr. Berman. Because the testimony of both Mr. Pelletier and Ms. Lahm conclusively and unequivocally characterize the assault as sudden, "unexpected" and "surprising", the facts arguably fit quite neatly into the definition of the emergency doctrine. At the absolute minimum, there is at least a factual issue as to whether that act was sudden and unexpected, as it is uniformly described by Ms. Lahm and the plaintiff himself. For that reason, the plaintiff cannot argue directly contrary to his own sworn testimony in Court, that the pulling of the bikini string was in fact not sudden and unforeseen as a matter of law, and it is worth reiterating that the plaintiffs statement offers absolutely no supporting evidence or case law to support such an extreme conclusion. Since the plaintiff cannot make that showing, the plaintiff has similarly failed to establish that the decision of the Appellate Division "was in contravention of established law". For the same reasons, the plainti ff has utterly failed to demonstrate that reversal is watTanted on the ground that the charge was "not harmless error", inasmuch as it was not error at all. Similarly, an honest reading of the Record, absent the egregious mischaracterization rife in the plaintiffs statement, plainly demonstrates that the verdict in favor of Ms. Lahm was not against the weight of the evidence. At the risk of repetition, in the light most favorable to Ms. Lahm, the teenage driver whose bikini string was expectedly pulled follow two patently unrelated acts of a backseat passenger, a triable issue existed as to whether she was faced with a sudden and unforeseen occurrence not of her own making. The plaintiffs appeal should therefore be denied in all respects. Very truly yours, 11