Kent Frezzell, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 15, 2014To be Argued by: JAY L.T. BREAKSTONE New York County Clerk's Index No. 116366/07 New turk ~upreme Qtnurt i\pp.ellnt.e iliuisinn -lf1ir.st il.epnrtm.ent ---n--- KENT FREZZELL, Plaintiff-Appellant, -against- CITY OF NEW YORK and STEVE TOMPOS, Defendants-Respondents. BRIEF FOR PLAINTIFF -APPELLANT Printed on Recycled Paper PARKER WAICHMAN, LLP Attorneys for Plaintiff-Appellant 6 Harbor Park Drive Port Washington, New York 11050 (516) 466-6500 jbreakstone@yourlawyer .com TABLE OF CONTENTS Brief for Plaintiff-Appellant Table of Authorities .............................................................................. ii Preliminary Statement ........ .......... ..... .......... .... ....... ........ .......... ..... ..... ... 1 Question Presented ................................................................................ 2 Statement of Facts ................................................................................. 3 Argument Point: MATERIAL QUESTIONS OF FACT PRECLUDED THE GRANT OF SUMMARY JUDGMENT .............................. 10 Conclusion ........................................................................................... 14 I TABLE OF AUTHORITIES CASES Badalamenti v. City of New York, 30 A.D.3d 452, 817 N. Y.S.2d 134 (2d Dep't 2006) ....................... 11 Baines v. Ctiy of New York, 269 A.D.2d 309, 703 N.Y.S.2d 463 (1st Dep't 2000) ...................... 12 Corrallo v. Martino, 58 A.D.3d 792, 873 N.Y.S.2d 102 (2d Dep't 2009) ....................... 10 Derdiarian v. Felix Constructino Corporation, 51 N.Y.2d 808 (1980) .............................................. 12 DuChessi v. D 'Alesandro, 265 App.Div. 982,983,38 N.Y.S.2d 662 (2d Dep't 1942) ................. 13 Gonzalez v. Iocovello, 93 N.Y.2d 539 (1999) ............................................... 2 Krulik v. County of Suffolk, 62 A.D.3d 669, 878 N.Y.S.2d 436 (2d Dep't 2009) ....................... 12 O'Connor v. City of New York, 280 A.D.2d 309,719 N.Y.S.2d 656 (1st Dep't 2001) ...................... 11 Saarinen v. Kerr, 84 N.Y.2d 494 (1994) ............................................... 2 Burrell v. City of New York, 49 A.D.3d 482, 483, 853 N.Y.S.2d 598 (2d Dep't 2008) ................... 10 11 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------- )( KENT FREZELL, Plaintiff-Appellant, -against- CITY OF NEW YORK and STEVE TOMPOS, Defendants-Respondents. ------------------------------------------------------------------------- )( BRIEF FOR PLAINTIFF-APPELLANT Preliminary Statement This brief is filed by plaintiff-appellant ["plaintiff"] Kent Frezzell, seeking review of an order of Supreme Court, New York County [Wright, J.] granting summary judgment to defendants-respondents City of New York ["City"] and Steve Tompos [ "Tompos "][collectively "defendants"], dismissing the complaint. [R 5] 1 Supreme Court's order granted the application upon a finding that Vehicle and Traffic Law [ "VTL "] § II 04( e) excused defendants' conduct. Those actions involved defendants' police car, which was proceeding the wrong way on a one-way street, colliding with stopped plaintiffs police car, which had 'Numbers in brackets, preceded by the letter "R", refer to the Record on Appeal. I been proceeding on the same street, but headed in the proper direction. [R 7] Supreme Court found, as a matter of law, that the conduct of defendants was not 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."' I d., citing Gonzalez v. Iocovello, 93 N.Y.2d 539 (1999), quoting Saarinen v. Kerr, 84 N.Y.2d 494 (1994). In order for the court below to have come to the conclusion it did, as a matter of law, it had to decide the existence or absence of certain facts. Unlike in Gonzalez or Saarinen, these facts were very much in contention. Indeed, even the deposition testimony of defendant Tompos and his partner, both in the police car at the time of the incident, did not jibe. These questions offact could not have been decided as a matter of law, nor by the court. They were material questions of fact which required a jury. In a case such as this, the Court has consistently ruled that the party seeking summary relief, albeit one that comes within VTL § l104(e), must nonetheless eliminate all such questions of fact before judgment can be granted. QUESTION PRESENTED Did defendants-respondents properly eliminate all material questions of fact, sufficient to sustain summary judgment as a matter of law? 2 The court below answered the question in the affirmative. STATEMENT OF FACTS Wrong Way on a One-Way Street Kent Frezzell was working a 4:00p.m. to midnight shift on the night of September 20, 2006. [R 90] Assigned to the Housing Bureau, Frezzell and his partner, Officer Morrison, were on patrol in a marked police car [ "RMP "] in the area of the Douglas Houses, near Columbus A venue and I 04th Street in Manhatta- n, [R 90, 91, 140] Over his radio, Frezzell heard another police officer transmit that he was in pursuit of an individual in their vicinity. [R 140] Activating their emergency lights and siren, Frezzell and Morrison responded to the call, traveling eastbound on 1 04th Street, a one-way street. [R 141, 142) As they proceeded down 104th Street, Frezzell saw another RMP headed the wrong way (north) on Columbus Avenue, just south of 104th Street. [R 143) The RMP then made a left tum into 104th Street, against the flow of traffic, heading the wrong way on the one way street. !d. Frezzell didn't recall if that RMP even had its emergency lights or siren on as it turned into 104th Street. [R 94, 144] Frezzell saw the other RMP coming at him the wrong way on I 04th Street at a high rate of speed. [R 143] Attempting to avoid the other RMP, Frezzell took evasive action by pulling over to the right as far as possible (there were cars 3 parked on both sides ofthe street) and coming to a complete stop. [R 92, 143, 147] However, the other RMP kept coming, hitting Frezzell's car in the middle of the driver's side. The impact was heavy ("intense" [R 94],) the point of impact reflecting Frezzell's evasive action in having moved to the right on the one way street. [R 144] "Calling All Cars" On the day of the accident, Officer Tompos and his partner, Officer Brunjes, were also in a patrol car. [R 215] Tompos was the driver of the car, while Brunjes was the recorder. !d. However, Tompos and Brunjes were not assigned to the area where the accident occurred. Instead, they were assigned to the Central Park precinct, which covered the entire park, from 59th Street to !lOth Street, within the walled borders of the park and the streets adjoining it. [R 211, 212] Their motor patrol was to be within those walls. [R 212] Nonetheless, when Tompos heard either a "10-13" or"l0-85" call on his radio, he and Brunjes responded. [R 218] The officer on the radio was "screaming" that he was in foot pursuit of a "man with a gun" at I OOth Street and Columbus Avenue. [R 220] When he heard the call, Tompos was sitting in his RMP with his partner as lOOth Street and Central Park West. [R 219] On his radio, Tompos also heard several other transmissions indicating that multiple police vehicles were responding. "A lot of them were units responding which I 4 couldn't begin to tell you." [R 220] Tompos, hearing no orders or response from his own Central Park command, determined to enter the chase anyway. [R 221, 225] He did so without ever advising Central Park command of his intentions or position. [R 230] Tompos would testify that it was his recorder, Officer Brunjes, who would have been responsible for activating the emergency lights and siren as they began their chase, and that Officer Brunjes did just that. [R 221] Tompos then headed west on lOOth Street from inside Central Park, turning north, heading uptown against traffic on Columbus Avenue. [R 225, 226, 227] There were no intervening cross-streets as he headed uptown, as that was where the housing project was located. [R 228] Tompos recalled that there were so many police vehicles parked on Columbus Avenue responding to the radio call that he couldn't even stay in the left lane of Columbus Avenue. [R 229] These vehicles included other RMPs, unmarked cars, Emergency Service Unit [ "ESU"] vehicles and even scooters. [R 230] Going the wrong way up Columbus Avenue, Tompos could not see the face of the traffic signal as he approached the comer of 104th Street. [R 232] Nonetheless, Tompos made a left tum into the one-way street.2 [R 232] As he 2There is no testimony by Tompos that he reduced speed as he turned into I 04th Street. Officer Frezzell would note that he always slowed at intersections, even when in pursuit. [R 14 7] 5 made the tum, Tompos saw only civilian vehicles parked on the street and did not see any ESU vehicle parked on the street as he came around the comer. [R 236] What he did see was Frezzell's RMP. [R 234] According to Tompos, it was moving at about the same speed as his, 20 m.p.h. [R 235, 236] Though he tried to avoid impact by turning his car to the righe, the cars collided about 3-4 car lengths from the comer and within 2-3 seconds from the first time that Tompos saw Frezzell's car. [R 232, 234, 238] Since the presence of an ESU truck parked on the comer of I 04th Street as Officer Tompos turned into the street would have precluded Officer Tompos from being on the right side of the street as he had testified, the issue was pressed at Tompos' deposition. The official police accident report on the collision, signed by Tompos' direct supervisor, stated that the accident occurred when Tompos turned into 104th Street and found an ESU truck parked on the comer, necessitating his going around the truck and, in the process, striking Frezzell's RMP. [R 234] Officers were responding to an active foot pursuit of a man with a gun. The pursuing officers on foot made sudden s change of direction causing operator to up a one way. 3Tompos would claim that he moved his car to the right because Frezzell was headed to Frezzell's own left, or directly toward's Tompos' side of the one-way street. [R 240] 6 The officer did negotiate around a parked esu truck at which time he struck a housing rmp. [R 278] Tompos, however, didn't recall ever mentioning the ESU truck, didn't think an ESU truck was involved and doesn't recall ever mentioning an ESU truck to his supervisor. [R 255] "I don't recall saying that," Tompos testified, "I don't know ifthere was one there or not." Id. When faced with the official police accident report, Officer Tompos also had a problem recalling whether his siren was constanty on during his pursuit and at the point he turned into I 04th Street. [R 257, 258] The accident report indicated that the siren was not on constant. [R 257, 279] Tompos himself couldn't remember whether the siren was constantly on as he drove into 104th Street. "I told you I really wasn't working the siren. My partner was. I had the hom siren." [R 257] Tompos conceded that the information on the accident report form indicated that it came from him. [R 258] The testimony ofTompos' partner, Richard Brunjes, did not corroborate Tompos' recollections. In some respects, Brunjes' recollections were crisp. He remembered that the radio report was of a man with a gun running through the housing project, chased by a Housing officer. [R 290] Using his memo book, Brunjes recorded the call at 10:10 p.m. as a "10-85", officer needs 7 assistance. [R 292] Brunjes explained this is the less intensive version of the "10- 13" radio call, which infer a sense of immediacy and heightened need. [R 309, 310] Brunjes said that he and Tompos had no responsibilities outside of Central Park. [R 302] However, the chase seemed to be headed toward the park and they decided to move to cut it off and apprehend the perpetrator. [R 315] While Brunjes agrees that activating the emergency lights and siren was his job as the vehicle's recorder, he doesn't recall when turned them on at all. [R 317, 318, 319] Nor does he recall ifTompos turned them on instead. [R 320] While he heard sirens on the street, he doesn't recall if they were of the many other vehicles responding or his own. [R 322] As the pursuit continued, Brunjes knew that other vehicles were responding throughout the area and saw them on streets. [R 330] However, Brunjes doesn't recall if he and Tompos ever radioed their own position to anyone. [R 331] When asked about the ESU truck on the comer of I 04th Street, at first Brunjes testified that he never saw an ESU truck. [R 349] However, when shown the police accident report filed by his supervisor, Brunjes agreed that there indeed might have been a ESU truck on 104th Street when he and Tompos turned into the one-way street [R 365] and that Tompos might have moved out of the way of the ESU truck as he entered the street. [R 365] Brunjes confirmed that he had spoken 8 to his supervisor and given him his version of the facts so that the supervisor could fill out the report. [R 366] That report refreshed Brunjes' recollection as to the ESU truck. [R 367] Finally, when asked, Brunjes couldn't really recall which side of 1 04th Street his own RMP was on as it came around the comer. [R 349] The Decision Below On this evidence, the court below granted defendants' motion for summary judgment, finding that there were no material questions of fact extant. [R 6] While plaintiffs action, brought under General Municipal Law§ 205-e and General Obligations Law § 11-106, granted a police officer a right of action in a personal injury matter, VTL § 1104(e) barred any liability on defendants' part in the absence of a finding of"reckless disregard." [R 7] The court found that this was merely the case of two police vehicles, each in pursuit of the same suspect and the officer pursuing him, who saw each other "and tried to avoid an accident, but could not because of the width of the roadway [which] did not permit sufficient room to avoid contact." !d. That finding was based on the court's determination that the evidence showed only that "the two car hit almost head on even though both drivers tried to tum to the right to avoid contact. Both drivers allege that they turned on their sirens and dome roof lights." [R 6] At best, the court decided, "plaintiff has alleged mere negligence, which under the Vehicle and Traffic Law is not sufficient in this case." [R 7] 9 This appeal followed. [R 3] ARGUMENT POINT MATERIAL QUESTIONS OF FACT PRECLUDED THE GRANT OF SUMMARY JUDGMENT For summary judgment purposes, the invocation ofVTL § 1104(e) should change nothing in a motion court's analysis of whether or not the movant has eliminated all material questions of fact, thus clearing the way for summary relief. For example, in Corrallo v. Martino, 58 A.D.3d 792, 873 N.Y.S.2d 102 (2d Dep't 2009), appellants argued that their police officer was operating has police car during an emergency operation and was not reckless in entering an intersection against a steady red light. In affirming the denial of summary judgment, the court noted that appellants had "failed to eliminate questions of fact" as to their officer's conduct at the intersection. 58 A.D.3d at 793. In the case at bar, multiple questions of fact abide. Among those questions of fact are those relating to whether defendant Tompos' view of an intersection or intersecting street is blocked or obstructed by a parked vehicle, such as the ESU truck which was parked at the comer of 1 04th Street. Burrell v. 10 City of New York, 49 A.D.3d 482, 483, 853 N.Y.S.2d 598 (2d Dep't 2008) [issue of fact as to whether officer's view of intersection obstructed by parked vehicle precludes summary judgment]. Nor is there only the question of the obstructing ESU truck- - which would have required Officer Tompos to enter the one-way street on the left side of the street and be unable to move to the right within 1-3 car lengths as he testified - - but also whether or not the lights and siren on the Tompos RMP had been activated, an essential safety factor with numerous police units in pursuit on every street in the neighborhood. In Badalamenti v. City of New York, 30 A.D.3d 452, 817 N.Y.S.2d 134 (2d Dep't 2006), the court held that questions of fact on these two issues, i.e., and obstructing truck and whether the defendant officer activated his turret lights and siren, would not allow the grant of summary judgment. 30 A.D.3d at 453 ["Under these circumstances, the defendants are not entitled to judgment as a matter of law on the issue of whether the defendant police officer was operating his vehicle in reckless disregard for others at the time ofthe accident."] Adding to these questions of fact are those relating to the entry into a one-way street, permitted under VTL § 1104(e) so long as it is not with reckless disregard. In O'Connor v. City of New York, 280 A.D.2d 309,719 N.Y.S.2d 656 (1st Dep't 2001), the Court held that entering a one-way street against traffic without the benefit of lights or siren and without slowing down, would support a 11 finding of reckless disregard under the statute and sustain a jury's verdict under GML 205-e. A jury could well-find that under the particular circumstances ofthis case, with knowledge that the area was flooded with other police units in pursuit just as they were and violating vehicle and traffic laws just as they were too, defendants' entry into 1 04th Street in the manner they elected was particularly reckless. The obstructing ESU truck, the absence of lights and siren, and the entry into a one-way street without slowing down to a safe speed, are all critical facts in assessing whether or not defendants acted in reckless disregard for purposes of VTL § 11 04( e). There is no mystery to that term, which may be described as intentionally committing an act of an unreasonable character in disregard of an known or obvious risk that was so great as to make it highly probable that harm would follow. Krulik v. County of Suffolk, 62 A.D.3d 669, 878 N.Y.S.2d 436 (2d Dep't 2009). While Officer Tompos may have been authorized to violate the Vehicle and Traffic Law, "that privilege was conditional and he remained subject to the duty to drive with due regard for the safety of others." Baines v. Ctiy of New York, 269 A.D.2d 309, 703 N.Y.S.2d 463 (1st Dep't 2000). Fellow police officers are not excluded from those protections. It is not accidental that questions of fact are vouchsafed to juries and that issues of causation are left to them to resolve. Derdiarian v. Felix 12 Construction Corp., 51 N.Y.2d 808 ( 1980). It is only by judging credibility that the truth may be told. Questions relating to whether two cars on a one-way street could have avoided impact by one altering their course of the other, are jury questions. DuChessi v. D 'Alesandro, 265 App.Div. 982, 983, 38 N.Y.S.2d 662 (2d Dep't 1942). In this case, there is even disagreement as to whether or not plaintiff's car was stopped when it was hit by defendants' car. Recall that Officer Frezzell says that his car was stopped when impacted by Officer Tomas', while Officer Tompos says that is not so. The movement of Officer Frezzell's RMP is critical to the issue of reckless disregard as it shortens the length oftime of impact. If Officer Frezzell was not headed toward Officer Tompos at the same speed that Officer Tompos was headed towards Officer Frezzell, as Officer Tompos testified, than Officer Tompos had twice as much time to avoid the accident., but did not or could not. Viewing the evidence in the light most favorable to plaintiff, material factual questions relating to reckless disregard preclude summary judgment in this case. Substantial credibility issues abound between the testimony of Officer Frezzell and Officer Tompos. Indeed, those same credibility issues even extend to the testimony of Officer Tompos and his own partner, Officer Brunjes. Only a jury may sort out these issues, making summary relief markedly inappropriate. 13 CONCLUSION The order should be reversed and this matter returned to Supreme Court for trial. Jay L. T. Breakstone, Brett A. Zekowski, Of counsel. July 8, 2012 Respectfully submitted, PARKER WAICHMAN LLP Attorneys for Plaintiff-Appellant 6 Harbor Park Drive Port Washington, New York 11050 (516) 466-6500 By: -++Jbl'-llf~'71---¥-1{f--II-IL--'@jea~~~- (j1Jiay L. T. Breakstone PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to the rules of the Court that the foregoing brief was prepared on a computer using Wordperfect, Version X5. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line Spacing: Double Word Count: The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., are 3111. Dated: Port Washington, New York July 8, 2012 PARKER WAICHMAN LLP Attorneys for Appellant By: 6 Harbor Park Drive Port Washington, N.Y. 11050 (516) 466-6500 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------X KENT FREZZELL, Plaintiff; -against- CTIY OF NEW YORK and STEVE TOMPOS, Defendants ----------------------------X PRE-ARGUMENT STATEMENT Index#: 116366/07 PLEASE TAKE NOTICE, that the Petitioner-Appellants, Kent Frezzell as and for their Pre- argument Statement, hereby respectfully submits as follows: 1. The title to this action is: Frezzell v. City ofNew York and Steven Tompos. 2. The full names of the original parties are the same as stated above. There has been no change in the parties. 3. The name, address and telephone number of the counsel for the Appellants are: Parker Waichman Alonso, LLP. 6 Harbor Park Drive Port Washington, NY 11050 (516) 466-6500 4. The name, address and telephone number of the counsel for Respondents are: Michael A. Cardozo Cotparation Counsel I 00 Church Street New York, NY 10007 (212) 788-8685 5. There is no additional appeal pending. 6. There is CUII'elltly no related action or proceeding pending. 7. This Appeal is taken from an Order from the Supreme Court, New York County enteredonApril14, 2011. 8. The nature and object of the Cause of Action was defendants' motions for summary judgment in this negligence action. I 9. The Supreme Court, New York County granted the defendants' motions for summary judgment. 10. The grounds for seeking reversal are that the trial court erred in granting summary judgment to the defendants, City of New Yolk and Steve Tompos, the plaintiffs demonstrated triable issues of material fact as to the claims of each of the moving defendants for the happening of the plaintifi's accident Dated: Port Washington, NY Mayl3,2011 2 , • ..L-• .ru.raicbman Alonso, LLP Attorneys for Petitioners-Appellants 6 Harbor Park Drive Port Washington, NY 11050 (516) 466-6500