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 York Supreme Court Appellate Division – First Department KENT FREZZELL, Plaintiff-Appellant, – against – CITY OF NEW YORK and STEVE TOMPOS, Defendants-Respondents. REPLY BRIEF FOR PLAINTIFF-APPELLANT PARKER WAICHMAN, LLP Attorneys for Plaintiff-Appellant 6 Harbor Park Drive Port Washington, New York 11050 (516) 466-6500 jbreakstone@yourlawyer.com Printed on Recycled Paper TABLE OF CONTENTS Reply Brief for Plaintiff-Appellant Table of Authorities ............................................................................... i Preliminary Statement ........................................................................... 1 Argument Point: QUESTIONS OF MATERIAL FACT ABOUND AND IT WAS IMPROPER TO GRANT SUMMARY JUDGMENT AS A MATTER OF LAW....................................... 2 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). . . . . . . . . . . . . . . . 10, 11, 12 Johnson v. Lutz, 253 N.Y. 124 (1930) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 O’Connor v. City of New York, 280 A.D.2d 309, 719 N.Y.S.2d 656 (1st Dep’t 2001). . . . . . . . . . . . . . . . . . . . 12 Quintana v. Wallace, 95 A.D.3d 1287, 945 N.Y.S.2d 366 (2d Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . 7 Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Salzano v. Korba, 296 A.D.2d 393, 745 N.Y.S.2d 56 (2d Dep’t 2002) . . . . . . . . . . . . . . . . . . 12, 13 STATUTES Vehicle and Traffic Law § 1104(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim ii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : FIRST DEPARTMENT ------------------------------------------------------------------------- X KENT FREZELL, Plaintiff-Appellant, - against - CITY OF NEW YORK and STEVE TOMPOS, Defendants-Respondents. ------------------------------------------------------------------------- X REPLY BRIEF FOR PLAINTIFF-APPELLANT Preliminary Statement This brief is filed by plaintiff-appellant [“plaintiff”] Kent Frezzell, in reply to the answering brief of defendants-respondents City of New York [“City”] and Steve Tompos [“Tompos”] [collectively “defendants”]. Defendants’ facile meandering through the record, making neat packages of critical facts that remain, despite their best efforts, questions of fact for the jury, belies the efficacy of the decision below granting summary relief. Factors which must be addressed in determining whether or not defendants’ conduct was reckless - - a decision which even defendants admit is central to their defense of the 1 grant of summary judgment - - are no more definite now than they were before the court below. The relief granted by Supreme Court was ill-advised and contrary to law. It should be reversed and this matter returned for trial on the merits. A R G U M E N T POINT QUESTIONS OF MATERIAL FACT ABOUND AND IT WAS IMPROPER TO GRANT SUMMARY JUDGMENT AS A MATTER OF LAW Defendants agree that Vehicle and Traffic Law [“VTL”] § 1104(e) conditions the grant of the right to violate certain section of the VTL upon the police officer operating his police vehicle in a manner that is not reckless and that shows “‘due regard for the safety of all persons’.” Brief for Defendants-Respon- dents [“Def Brf”] at 15, quoting VTL § 1104(e). Defendants adopt the language of the Court in Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994). “Reckless disregard consists of the intentional commission of an ‘act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly proba- ble that harm would follow and has done so with conscious indifference to the outcome’.” Def Brf at 16. Continually contending that the critical evidence relating to defendant 2 Tompos’ conduct is “uncontradicted” does not make it so. Def Brf at 17. In fact, little of Officer Tompos’ conduct is certain and much of it is uncorroborated. The remainder is at odds with the testimony of not only plaintiff, a fellow police officer, but by defendant Tompos’ own partner, Officer Brunjes. In the end, the only person who attested to the lack of reckless disregard by Officer Tompos on the night in question was Officer Tompos himself. It is not “uncontradicted” that Officer Tompos slowed as he turned the wrong way down West 104th Street from Columbus Avenue. Def Brf at 17. Tompos testified that when he reached that corner, he didn’t even know what color the traffic light was showing. [R 231-232; Def Brf at 7] Nor did Officer Brunjes. [R 371] Officer Brunjes did not really testify that his partner was going “approxi- mately ten to twenty miles per hour in the seconds preceding the accident.” Def Brf at 10. Brunjes had no realistic idea how fast the RMP was traveling when it rounded the corner of West 104th Street, except that it was slower than it had been traveling on Columbus Avenue. [R 370-371] That speed could have been anywhere from 20-25 miles per hour [R 371] or maybe 30 miles per hour [R 370: Tompos reduced speed 10 miles per hour from his speed on Columbus Avenue, which could have been “Estimated, 30, 35, 40.”] At the end of his testimony, Officer Brunjes had to concede that he was “not that good of a guesstimate of speed.” [R 371] 3 Officer Tompos himself would never testify that he reduced his speed at all as he rounded the corner of West 104th Street. Consequently, it is scarcely “uncontra- dicted” that Tompos slowed his vehicle as he turned the wrong way down West 104th Street. Nor is it “uncontradicted,” as defendants contend, that both RMPs had their lights and sirens activated. Def Brf at 18 [“It is uncontradicted through all of the witnesses’ testimony and in the various police reports that both vehicles had their lights and sirens on, although, according to a checked box in a police report, Officer Tompos’ siren may have not been on a ‘constant’ setting.”] Tompos admits that it was his partner, Brunjes, not him, who was responsible (as the “recorder”) for activating the lights and siren of the RMP. [R 221] Brunjes, however, doesn’t recall whether he ever activated the lights and siren on the night of the collision. [R 317, 318, 319] And while Tompos claims that even were the main lights and siren not activated by his partner, he (Tompos) was utilizing the horn siren himself [R 257], the horn siren is not constant and Tompos would never testify as to precisely when he turned the siren on or off as he rounded the corner onto the one- way street. Nor did he claim that the horn siren intermittently activated the emergency roof lights on his RMP, which would have been otherwise dark on that night. In an environment in which there were police vehicles with their sirens 4 screaming from all directions - - so confusing that Tompos (not “some other officer” as defendants offer [Def Brf at 18]) could only hear his own siren as it “drowned out any other sirens,” the use of emergency lights was mission critical for safety. [R 237] Officer Brunjes corroborated even greater confusion, conceding that with all the sirens on the street, he couldn’t even recall if the siren he was hearing was coming from his own RMP. [R 322] Plaintiff agreed, as he could not recall if he ever heard Tompos’ siren or saw Tompos’ emergency lights prior to the collision. [R 94, 144; Def Brf at 18] The speed at which Officer Tompos took the turn from Columbus Avenue into West 104th Street; whether or not Officer Brunjes activated the RMP’s emergency lights and constant siren; and at what point(s) in the timeline Officer Tompos activated his horn siren (if at all) prior to the collision are each material questions of fact which go to the reckless disregard standard of VTL § 1104(e). In this confusion of light and sound, Officers Tompos and Brunjes could never even affirmatively demonstrate that they had ever bothered to advise other police officers of where they were, as they left their precinct’s geographic borders and went driving up and down streets the wrong way. Defendants contend that “Officer Brunjes used the radio to inform other units in the area that they were responding to the call.” Def Brf at 6. Obviously, that is a matter of some impor- 5 tance or defendants wouldn’t have mentioned it. The importance is rather self- evident, as the need to safely regulate multiple mobile units to effectively chase a suspect who is on foot requires some modicum of centralized control and aware- ness. The problem for defendants is that Officer Brunjes says just the opposite. Looking closely at Tompos’ testimony, he only says that he “believes” that Brunjes reported their intent and position to command by radio. [R 230] When pressed, “believes” quickly diminised to “I’m not sure.” Id. The question looms even larger, as Tompos would later admit that he and Brunjes were never directed by any superior to involve themselves in the chase and that he never advised anyone that he and Brunjes “were going to respond to this particular call for help.” [R 245] Both Brunjes and Tompos heard the scores of responding units engaging in the chase, as each had his own portable radio attached to his belt. They talked of getting involved and “cutting them off”; of “catch[ing] the guy with the gun.” [R 315] They listened to the chase, trying to figure out “where the chase was coming toward us.” Id. But for whatever reason, they never sought nor received permission from their superiors to join the fray, and they never told anyone they had decided to insert themselves into the chase when they did. [R 316] Officer Brunjes testified he never contacted anyone. Id. 6 The Second Department discussed the importance of an officer advising supervising officers of involvement in a pursuit in Quintana v. Wallace, 95 A.D.3d 1287, 945 N.Y.S.2d 366 (2d Dep’t 2012). There, an officer did not advise his superiors of his initiation of a high-speed, nighttime pursuit. In denying summary judgment, the court noted that it was defendant’s burden “to establish, prima facie, that its police officers did not act in reckless disregard for the safety of others,” and stated a self-evident principle important here: that defendant had failed to eliminate triable issues of fact as to whether the pursuing officers properly informed supervising authorities of his pursuit, thus denying them the ability to make “an informed decision regarding whether the pursuit should be discontinued.” 95 A.D.3d at 1288. Had Officers Tompos and Brunjes contacted their precinct command, they might have well been told not to leave the Central Park precinct unprotected to join in an already active pursuit. By the same token, had these officers kept supervisors aware of their location as they careened about the streets of upper Manhattan, they might have been told of the location of other officers - - such as Officer Frezzell - - and not endangered their safety. Instead, defendants can make no such showing, acted on their own, and made the failure to advise and its effect a material question of fact which remains unrequited. With questions of fact abounding as to the speed of vehicles, the use 7 of emergency lights, the intermittent or constant use of sirens (and, if the former, when the sirens were used,) and the failure to advise surrounding and responding vehicles to defendants’ participation in the pursuit, one would think that, at the very least, plaintiff and defendants could agree as to what happened when Officer Tompos drove the wrong way down West 104th Street. But even there, questions of fact prevent reaching a conclusion as a matter of law. Defendants consciously avoid Officer Tompos’ testimony as to what happened when he first turned into West 104th Street, heading in the wrong direction. The reason is that Tompos’ testimony raises yet another unrequited question of fact. While Tompos admits to bearing to the right on West 104th Street after rounding he corner, that may well have been impossible. [R 240] While plaintiff indeed testified about moving his RMP to the right and stopping when he saw defendants’ car [R 239-240; Def Brf at 8], Officer Tompos could not have moved his car to the right at the beginning of the street as he came around the turn because of the presence of an Emergency Services [“ESU”] truck parked at the corner. The official police report says just that, indicating that Tompos had to go around the ESU truck and, in the process, struck plaintiff’s RMP. [R 234] “The officer [Tompos] did negotiate around a parked esu truck at which time he struck a housing rmp.” [R 278; Def Brf at 8] 8 Tompos’ denial of making such as statement [R 255] creates an essential question of fact for the jury. What did Tompos do and was it reckless? Officer Tompos himself could give no explanation for the conclusion contained in the official police accident report form, nor could he explain why “a box on the accident report was checked indicating that his siren was not on ‘constant’[.]” Def Brf at 8-9. When asked whether there was an ESU truck on the corner of West 104th Street preventing him from moving to the right as he rounded the corner, as the official police report stated, Tompos never recalled mentioning the ESU truck. The best the officer could muster was an “I don’t recall saying that” and an “I don’t know if there was one there or not.” [R 255] Such equivocal testimony scarcely amounts to the stuff that eliminates questions of fact from the jury, especially when coupled with the testimony of Tompos’ partner, Brunjes, who freely concedes that there may well have been an ESU truck parked on the corner of West 104th Street, a truck that caused Tompos to move out of the way as the entered the street. [R 365] Unlike his partner, Brunjes remembered how these statements made their way into the official police accident report - - he put them there by speaking to his supervisor who filled out the report with Brunjes’ version of the facts.1 [R 367] In 1Defendants are incorrect when they statement that the official police accident report is “insufficient” to raise a question of fact with respect to these issues. Def Brf at 19. Officers Tompos and Brunjes were eyewitnesses to the facts and were under a duty to 9 the end, Brunjes admitted that he couldn’t remember what side of West 104th Street he and Tompos were on as they came around the corner from Columbus Avenue. [R 349] Defendants find none of these questions of fact material, either alone or in combination with one another. Def Brf at 20. Yet, it would be difficult to ignore cases such as Badalamenti v. City of New York, 20 A.D.3d 452 (2d Dep’t 2006). In denying a motion for summary judgment by the City of New York (defendant here,) the Second Department reminded that the “reckless disregard” standard of VTL § 1104(e) is fact-driven, and that material issues of fact which must be decided by a jury preclude summary relief as a matter of law: Here, the parties' evidentiary submissions indicate that the defendant police officer did not stop at the stop sign which controlled the intersection where the accident occurred, that his view of the intersection was partially obstructed by a parked truck, and that he accelerated his speed upon entering the inter- section. In addition, there are disputed issues of fact as to whether the defendant police officer activated the turret lights and siren on his vehicle before proceeding into the inter- section. Under these circumstances, the de- fendants are not entitled to judgment as a impart their observations to their superior, who was under a duty to record them. The ruling in Johnson v. Lutz, 253 N.Y. 124 (1930) is not offended. 10 matter of law on the issue of whether the defendant police officer was operating his vehicle in reckless disregard for others at the time of the accident [citations omitted]. 30 A.D.3d at 453. In the case at bar, there are questions of facts relating to Officer Tompos’ speed entering West 104th Street; whether or not his RMP had its emergency lights and siren on; whether or not Tompos was using his intermittent horn siren and when he was using it; whether or not Tompos was on the right side of the one-way street or was in the center or left side of the street avoiding a parked ESU truck on the corner of West 104th Street; whether Tompos or his partner Brunjes ever informed his command and warned other responding vehicles that they were in active pursuit of the fleeing suspect; whether Tompos and his partner Brunjes ever told anybody where they were as they drove through the neighbor- hood going the wrong way on one-way streets; and whether Tompos knew or should have realized that his siren, even if operating, could hardly be heard over the din of all the sirens of all the other police cars in the pursuit. Of the factors which precluded summary judgment in Badalamenti, all three are present in this case, i.e., dangerous conduct on entering an intersection (here, even more acute as it was a one-way street,) activation of lights and siren, and the presence of an 11 obstructing truck (here, defendant City’s own ESU truck.2) In the end, the open questions of fact here are far more numerous than those in Badalamenti. The Court’s decision in O’Conner v. City of New York, 280 A.D.2d 309, 719 N.Y.S.2d 656 (1st Dep’t 2001), an appeal after trial, is dismissed by defendants because the accident here occurred at “a low rate of speed” and there is no question, defendants claim, that Officer Tompos’ car was operating with “lights and sirens.” Def Brf at 21. However, there is every question here as to Tompos’ rate of speed, coupled with the use, if at all, of emergency lights and sirens. In addition, and not present in O’Connor, there are the added factors of Tompos turning the wrong way into a one-way street and being unable to keep to the right because of an obstructing ESU truck and the failure of Tompos to advise other emergency vehicles in pursuit of his location. As in Badalamenti, there are more questions of fact for the jury in the case at bar than in O’Connor. Instead, defendants offer Salzano v. Korba, 296 A.D.2d 393, 745 N.Y.S.2d 56 (2d Dep’t 2002), and submit that Tompos’ conduct on the night in question was nothing more than a “‘momentary lapse’ in judgment’.” Def Brf at 23. Yet the record supports no such “momentary” lapse. Unlike the officer in 2Tompos testified that he knew the streets surrounding the pursuit were thick with participating emergency vehicles, including ESU trucks. [R 230] 12 Salzano, who entered a highway, his view obstructed, without stopping at a stop sign and struck plaintiff’s vehicle, Officer Tompos had plenty of time to recognize precisely what he was doing. His was no error of the moment, but a collection of reckless actions over a period of time. It is not accidental that, unlike Salzano, there is no police expcrt’s affidavit in this record which gives its imprimatur to conduct such as driving without emergency lights and constant sirens, and not advising your fellow officers - - also in active pursuit - - of your location. These are patently reckless activities, not a “momentary lapse” in judgment, and most assuredly raise the question of whether or not defendants’ actions “rise to the level of recklessness.” Def Brf at 23. 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. September 13, 2012 Respectfully submitted, PARKER WAICHMANLLP Attorneys for Plaintiff-Appellant 6 Harbor Park Drive Port Washington, New York 11050 (516) 466-6500 By: --~&4~~J.....JIP"-J..~.-L.-=~'--. ....:....B-re ak-s~:....;;..o_ne ___ _ 14 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 2761. Dated: Port Washington, New York September 13, 2012 PARKER WAICHMAN LLP Attorneys for Appellant 6 Harbor Park Drive Port Washington, N.Y. 11050 (516) 466-6500 By: -+e....lj,lloUI-#{,f--li.L-6!:...-T~~~re~ak~s~.IL...!.on....:......e ---