Kent Frezzell, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 15, 2014To be Argued by: JAY L.T. BREAKSTONE (Time Requested: 30 Minutes) APL-2013-00118 New York County Clerk’s Index No. 116366/07 Court of Appeals of the State of New York KENT FREZZELL, Appellant, – against – CITY OF NEW YORK and STEVE TOMPOS, Respondents. REPLY BRIEF FOR APPELLANT PARKER WAICHMAN, LLP Attorneys for Appellant 6 Harbor Park Drive Port Washington, New York 11050 Tel.: (516) 466-6500 Fax: (516) 466-6665 Date Completed: March 17, 2014 TABLE OF CONTENTS Reply Brief for Appellant Table of Authorities ............................................................................... i Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Argument Point I: THE COURT HAS JURISDICTION TO HEAR THIS APPEAL AS ONLY QUESTIONS OF LAW ARE PRESENTED FOR REVIEW ........................ 2 Point II: THE RECORD IS REPLETE WITH TRIABLE ISSUES OF FACT .................... 7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 TABLE OF AUTHORITIES CASES Alvarez v. Prospect Hospital, 66 N.Y.2d 320 (1986) .............................................................................................. 6 Campbell v. City of Elmira, 84 N.Y.2d 505 (1994) ............................................. 4, 5 Frezzell v. City of New York, 105 A.D.3d 620, 963 N.Y.S.2d 637 (1st Dep't 2013) ........................................... 14 Kabir v. County of Monroe, 16 N.Y.3d 217 (2011) ............................................... 4 People v. Norton, 79 N.Y.2d 808 (1991) ............................................... 3 People v. Schreiner, 77 N.Y.2d 733 (1991) .............................................................................................. 3 Quock v. City of New York, 110 A.D.3d 488, 973 N.Y.S.2d 72 (1st Dep't 2013) ............................................. 14 Saarinen v. Kerr, 84 N.Y.2d 494 (1994) .......................................... 4, 8, 9 Szcerbiak v. Pilat, 90 N.Y.2d 553 (1997) .................................................................................. 4, 11, 12 William J. Jenach Estate Appraisers and Auctioneers v. Rabizadeh, 22 N.Y.3d 470 (2013) .............................................. 6 STATUTES Civil Practice Law and Rules 5601(a) ........................................................ 2, 3, 4, 6 N.Y. Const. Art. V, § 3(b)(l) ................................................................................ 3 Vehicle and Traffic Law 1104(b) .............................................................................................................. 13 1104(e) ................................................................................................................. 8 ii COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------- }( KENT FREZZELL, Appellant, -against- CITY OF NEW YORK and STEVE TOMPOS, Respondents. ------------------------------------------------------------------------- }( REPLY BRIEF FOR APPELLANT Preliminary Statement This brief is filed by Appellant ["Plaintiff"] Kent Frezzell, in reply to the answering brief of Respondents City of New York ["City"] and Steve Tompos ["Tompos"] [collectively "Defendants"]. Respondents' brief is a union of misstatement and misunder- standing. Initially, Respondents misunderstand the nature of the Court's review of summary judgment rulings, taking the position that such review is barred by the inability of the Court to review questions of fact. Of course, the 1 Court's long history of commenting on the legal standard for summary relief suggests otherwise. Yet, even more troublesome is Respondents' misstate- ment of the Record which they claim the Court has no power to review. Each misstatement serves to identify a material fact which remains unresolved, thus preventing accelerated relief as a matter of law. ARGUMENT POINT I THE COURT HAS JURISDICTION TO HEAR THIS APPEAL AS ONLY QUESTIONS OF LAW ARE PRESENTED FOR REVIEW Respondents maintain that "since the two-justice dissent was not based on a question of law but merely on purported questions of fact," the Court is without power under CPLR 5601(a) to review the Appellate Division's order. Respondents' Brief ["Resp Br"] at 21. Contrary to Respondents' contentions, the Court clearly has jurisdic- tion to review. Rather than the dissenting justices disagreeing with the majority on questions of fact, the dissent disagreed with the majority on (a) whether the evidence presented was legally sufficient to raise material issues 2 of fact and (b) whether the issues of fact before the court were, indeed, material, i.e., whether they met the legal standard of "reckless disregard." thus precluding summary judgment. It is correct that in order for the dissent to qualify as the ground for an appeal under CPLR 5601(a) it must disagree with the majority on questions of law, not fact. The evident rationale for this condition precedent stems from the limited power of the Court to review only matters of law. N.Y. Const. Art. VI,§ 3(b)(l). Determination of whether evidence presented meets a legal standard is a question of law. It is well-settled that the Court is empowered to examine the legal sufficiency of evidence in support of a dispositive determi- nation. People v. Schreiner, 77 N.Y.2d 733, 738 (1991) [finding that whether evidence is legally sufficient to sustain the findings of a trial court concern- ing admissibility of evidence presents a question of law appropriate for the review of the Court of Appeals]; People v. Norton, 79 N.Y.2d 808 (1991) ["(a)lthough deciding whether hearsay statements fall within the 'excited utterance' exception requires factual determinations, the question whether a given set of facts takes a declarant's statements outside the exception is one 3 of law and thus reviewable by the Court of Appeals"]. Indeed the Court has taken on appeals pursuant to CPLR 5601(a) in circumstances analogous to the case at bar, where the dissenting justices in the court below disagreed with the majority on whether the proof presented by plaintiff was sufficient as a matter of law to support a finding of reckless disregard. Szczerbiak v. Pilat, 90 N.Y. 2d 553, 556 (1997) [two justices dissented and voted to reverse arguing that, viewing the proof in the light most favorable to plain- tiffs, there was sufficient evidence of recklessness on the part of the officer to permit the issue of liability to be determined by the jury]; Campbell v. City of Elmira, 84 N.Y.2d 505, 509-10 (1994) [holding that the Court was able to review whether the evidence presented could lead a reasonable juror to reach the verdict as to whether defendant was operating his vehicle in reckless disregard]. Most importantly, the Court has reviewed numerous summary judgment determinations in car accident cases involving police officers, including Saarinen v. Kerr, 84 N.Y.2d 494 (1994) and Kabir v. County of Monroe, 16 N.Y.3d 217, 222 (2011), emphasizing its duty to provide unifor- mity and understanding of the operative standard of care through examining 4 lower courts' application of the standard to varied fact patterns. Campbell v. City of Elmira, 84 N.Y.2d 505, 510 (1994). Here, the dissent argued that the issues before the court raised triable questions of material fact as to whether the Respondent acted reck- lessly. The dissent, however, merely identified those questions of fact; it did not decide them. For example, the dissent believed that the fact that an issue as to whether the Respondent's lights and siren had been activated precluded entry of summary judgment [R 423], while the majority concluded that it did not rise to the level of reckless disregard. [R 419] The dissent also pointed to such open factual issues as the presence of an obstructing vehicle on the police report, Officer Tompos' admission that he entered the intersection without ever seeing the face of the traffic signal, and, finally, the fact that other units were already in pursuit of the suspect when Respondents took their own initiative to pursue the chase without notification or authoritzation. [R 423-424] The dissent cited analogous case law where such conduct supported a reasonable finding of reckless disregard. [R 423] Thus, the dissenting justices disagreed with the majority on whether the evidence presented was legally sufficient to raise issues of fact and whether those 5 issues were legally sufficient for a reasonable juror to conclude that Respon- dents acted in reckless disregard. Consequently, the dissenting opinion was based on a question of law, as prescribed in CPLR 5601(a). Respondents' attempt to represent otherwise is entirely misplaced. Respondents' claim that "the dissent at the Appellate Division was not on a question of law" is incorrect. Resp Br at 22. Appellant's main brief made it abundantly clear that the dissent's identification of unresolved material questions of fact was precisely the sort of review essential to determ- ining the operative question of law, i.e., whether Respondents had met the standard for summary judgment. Appellant's Brief ["App Br"] at 18. Appel- lant's citation to William J. Jenach Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470 (2013) was not accidental: "This appeal comes to us in the posture of a summary judgment motion, thus we must consider whether Rabizadeh has met his burden to establish '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."' /d., quoting Alvarez 6 v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). The review sought by Appellant in the case at bar is no different. 1 POINT II THE RECORD IS REPLETE WITH TRIABLE ISSUES OF FACT The Appellate Division was incorrect in determining that Re- spondents had met their burden below and Respondents' review of the record here re-affirms the finding of the dissenting justices that triable issues of fact precluded summary judgment. 1 Respondents' claim that the discussion by the dissent of Respondents' insertion of themselves into the chase of a perpetrator, without advising anyone of their presence or purpose, was an issue not raised below is strange indeed. Resp Br at 21, 29. The actions of Respondents was raised in Appellant's main brief in the Appellate Division [Appellant's Brief at p. 5] and did not become an issue until Respondents denied it ever happened in the answering brief. [Respondents' Brief at 6: "Officer Brunjes used the radio to inform other units in the area that they were responding to the call."] This was a misstatement which created a conflict of evidence, was dealt with in Appellant's reply brief [Appellant's Reply Brief at 5-7] and was argued extensively to the court below. The misstatement of fact was pointed up by the dissent, which found that Tompos "admitted that he and his partner had never been directed by any superior to respond to the call and admitted that they did so without advising command of their intentions or position, notwithstanding the fact that multiple units were responding to the call." [R 421 (emphasis added)] Respondents can scarcely complain of an issue they created by misstating the record and argued extensively to the court below. 7 Respondents take issue with Appellant's argument that Respon- dents "were required to show that Officer Tompos '(i) was driving with due regard for the safety of others and (ii) was not driving with reckless disregard for the safety of others."' Resp Brat 23, quoting App Brat 20. According to Respondents, this statement is in derogation of VTL § 11 04( e) and "intro- duces a negligence standard and couples it with a recklessness standard," citing Saarinen v. Kerr, 84 N.Y.2d 494 (1994). Resp Brat 24. The problem for Respondents is that the language they complain of was taken directly from VTL § 11 04( e), which provides, in pertinent part, as follows: (e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the conse- quences of his reckless disregard for the safety of others. VTL § 11 04( e). The Court has never held that VTL § 11 04( e) provided a carte blanche for police conduct. The single "reckless disregard" standard in Saarinen is a recognition of 11 04( e)'s statutory language: 8 Saarinen at 501. Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer's conduct in pursuing a suspected law- breaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others. This standard demands more than a showing of a lack of 'due care under the circumstances' - - the showing typically associated with ordinary negligence claims. It requires evidence that 'the actor has intention- ally 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. In an effort to make the Record appear bereft of any triable questions of fact, Respondents simply misstate them. Necessarily, ever time this is done it points up another material fact which remains undecided; another impediment to summary judgment. For example, Respondents state that "[i[t remains uncontradicted, throughout all of the witnesses' testimony and in the various police reports, that both vehicles had their light and sirens on[.]" Resp Brat 26. That, however, is not true. 9 Officer Tompos would admit that it was his partner, Brunjes, not he, who was responsible for activating the lights and siren on their RMP, as the vehicles "Recorder." [R 221] But Brunjes would then testify that he couldn't recall if he ever activated the lights or siren on the night in question. [R 317,318, 319] When Tompos then testified that even if Brunjes had not activated the lights and siren, he, as the driver, could still utilize the siren activated by his steering wheel hom, he nonetheless would never testify as to when he activated that hom siren, nor did he state that the hom siren button also activated the roof lights, an important safety device at night. [R 257] So critical were the emergency roof lights, that Tompos conceded that with all the sirens of responding emergency vehicles on the street, he didn't even know if the siren he was hearing was from his own vehicle. [R 322] So instead of "uncontradicted" testimony that Respondents' lights and sirens were on the night of the accident, there was no testimony to that effect at all - - a defect in the proof and a material issue of triable fact duly noted by the dissent. [R 421] Respondents next conclude that since Appellant testified that he could see down West 1 04th Street all the way to Columbus A venue unim- 10 peded, it didn't make a difference whether Officer Tompos had his lights or sirens or both on. Resp Br at 26. But Appellant knew full well that he had his own lights and siren on [R 142] and that moments before the collision he saw "a police officer coming towards me at a high rate of speed." [R 143] While he made "an evasive move," and came to a complete stop, at a speed of 30 mph, he could not react fast enough to avoid the collision. [R 143, 147] This was especially so as Tompos' RMP was traveling even faster than his. [R 14 7] The collision occurred at the end of West 1 04th Street opposite from Appellant's entry into the street, within only 3-4 car lengths of the comer of West 104th Street and Columbus Avneue. [R 232, 234, 238] For Respondents to draw the conclusion that lights and sirens on Tompos' RMP would have had no effect on the accident which occurred is pure speculation, especially since Respondents' themselves admit that Appellant had a clear view of the block. Had Appellant had the opportunity to hear or see Tompos turning the wrong way into West 104th Street, nothing untoward might have happened. Such question is one for the jury, not any court. The conclusion reached by the majority to the contrary is incorrect for it decides the factual issue, not identifies it. Respondents' citation to Szcerbiak v. Pilat as standing for some 11 other principle of law shows a lack of understanding of the facts of that case. The failure to use lights and siren there was immaterial, as the responding officer had only traveled 800 feet before he struck plaintiff. In fact, the plaintiff was struck when the officer glanced down for a moment, in the absence of any pedestrian traffic, to do just that, activate his lights and siren. 90 N.Y.2d at 557. There is no conflict between Szcerbiak and the facts of this case at all. Perhaps the most curious misstatement of the record is Respond- ents' continued need to have the presence of an ESU truck on the comer of West 1 04th Street at the precise point that Tompos turned into the block vanish. Resp Br at 27. The dissent was correct, once again, when it held that the absence or presence of the ESU truck and its effect on causation were questions for the jury, not the court. The record, however, is replete with references to this ESU truck which would have impeded, in some respect, Tompos' ability to enter West 104th or drawn his attention away from what was there. Respondents' own police report confirmed the presence of the truck and even went so far as to state that Tompos "did negotiate around a parked esu truck at which time he struck a housing [Appellant's] rmp." 12 [R 278] While Tompos claims never to have seen the truck [R 255], that does not foreclose the inquiry. Tompos' partner, Brunjes, would admit that it was he who provided the information contained in the report and that Tompos might have had to avoid the ESU truck as their RMP entered West 1 04th Street. [R 365, 366, 367] The majority's decision that, as a matter of law, the parked ESU truck neither impeded Tompos' easy entry into West 104th Street nor obstructed his view are not legal decisions, but factual ones beyond the purview of a court's power on a motion for summary judgement. While those questions may need to be decided before final judgment, only a jury may do so. This same penchant for misstating the record also goes to Tompos' entry into West 1 04th Street and failure to recognize what the prevailing traffic signal revealed. Resp Br at 28. While it is true that VTL § 11 04(b) allowed Tompos to move in the opposite direction of traffic and traffic signals, it does not excuse reckless conduct. Yet, as the dissent specified, a jury could find that Tompos' ignorance of the color of the traffic signal he was violating put him into the position of not knowing what the traffic coming towards him on West 1 04th Street would be doing. Would 13 they be stopped at a red light or would they be proceeding on a green signal? Thus turning the wrong way into a one-way street, Tompos chose to make the left tum anyway. [R 421] That conduct could well be found reckless under the circumstances. None of the cases cited by Respondents at the close of their brief answer the questions of fact left open in this case. Resp Brat 31-34.2 They have each been previously discussed in Appellant's main brief. App Br at 12-13. In the final analysis, the dissent was correct: A jury could certainly find that entry into a one-way street in disregard of the traffic signal, in the absence of lights and siren and in the presence of an obstructing truck, when other units were already in pursuit of the suspect and defendant had undertaken on his own initiative to pursue the chase, con- 2Perhaps saying something often enough will make it so, even if untrue. Respon- dents' constant misstatement of the record to the effect that Tompos and his partner had activated their lights and sirens has now become fact, at least in the First Department. Witness the citation of this case in Quack v. City of New York, 110 A.D.3d 488, 973 N.Y.S.2d 72 (1st Dep't 2013) to support the denial of summary judgment where an officer "activated her lights and sirens immediately upon entering the vehicle, thereby alerting those around her to her persence and emergent right of way." 110 A.D.3d at 488-489, citing Frezzell v. City of New York, 105 A.D.3d 620, 963 N.Y.S.2d 637 (1st Dep't 2013). Indeed, Quack is also cited to this Court by Respondents themselves. Resp Brat 34. Of course (under the real facts,) unlike the officer in Quack, Tompos never activated his lights and siren, nor reduced his speed to a safe rate. 14 stituted reckless disregard. I would accordingly reverse, and deny defen- dants' motion for summary judgment. [R 424] CONCLUSION The order should be reversed and this matter returned to Supreme Court for trial. Jay L. T. Breakstone, Brett A. Zekowski, Of counsel. March 17,2014 Respectfully submitted, PARKER WAICHMANLLP Attorneys for Appellant 6 Harbor Park Drive Port Washington, New York 11050 (516) 466-6500 rr- 15