Kent Frezzell, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 15, 2014New York County Clerk’s To be argued by Index No. 116366/07 VICTORIA SCALZO APL-2013-00118 (15 minutes) STATE OF NEW YORK COURT OF APPEALS KENT FREZZELL, Plaintiff-Appellant, -against- CITY OF NEW YORK and STEVE TOMPOS, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS THE CITY OF NEW YORK AND STEVE TOMPOS ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for Defendants- Respondents, 100 Church Street, New York, New York 10007. (212) 356-0856 or -0827 Facsimile (212) 356-2509 KRISTIN M. HELMERS, VICTORIA SCALZO, Of Counsel. Date Completed: February 27, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES......................................... iii PRELIMINARY STATEMENT.......................................... 1 QUESTIONS PRESENTED............................................ 2 PROCEDURAL HISTORY AND FACTS................................... 3 A. The Pleadings................................ 3 B. Plaintiff’s Testimony........................ 4 C. Testimony of Police Officer Steve Tompos................................. 5 D. Testimony of Officer Richard Brunjes...................................... 9 E. Defendants’ Motion for Summary Judgment.................................... 12 DECISION AND ORDER OF THE SUPREME COURT....................... 13 THE PARTIES’ SUBMISSIONS IN THE APPELLATE DIVISION............ 14 DECISION AND ORDER OF THE APPELLATE DIVISION.................. 16 RELEVANT STATUTES............................................. 18 POINT I....................................................... 20 THIS COURT LACKS JURISDICTION TO HEAR THIS APPEAL BECAUSE NO QUESTION OF LAW IS PRESENTED AND, THEREFORE, THE APPEAL SHOULD BE DISMISSED.......................................20 Page ii POINT II...................................................... 22 THE APPELLATE DIVISION CORRECTLY AFFIRMED THE SUPREME COURT’S FINDING THAT DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT BASED ON AN ABSENCE OF PROOF OF RECKLESSNESS AND BECAUSE PLAINTIFF FAILED TO DEMONSTRATE THE EXISTENCE OF A TRIABLE ISSUE OF FACT...........................22 CONCLUSION.................................................... 36 TABLE OF AUTHORITIES CASES Page Badalamenti v. City of New York, 30 AD3d 452 (2d Dept. 2006) ............................33 Burrell v. City of New York, 49 AD3d 482 (2d Dept. 2008) ............................32 Corallo v. Martino, 58 AD3d 792 (2d Dept. 2009) ............................33 Desmond v. City of New York 88 NY2d 455 (1996) ................................30, n.5 Elnakib v. County of Suffolk, 90 AD3d 596 (2d Dept. 2011) ............................33 Frezzell v. City of New York, 105 AD3d 620 (1st Dept. 2013).......................passim Guaspari v. Gorsky, 29 NY2d 891 (1972) .....................................21 Kabir v. County of Monroe, 16 NY3d 217 (2011) .....................................24 Merrill v. Albany Medical Center, 71 NY2d 990 (1988) .................................21, 29 Nikolov v. Town of Cheektowaga, 96 AD3d 1372 (4th Dept. 2012)...........................35 O'Connor v. City of New York, 280 AD2d 309 (1st Dept.), appeal denied, 96 NY2d 716 (2001) ......................31 Quock v. City of New York, 110 AD3d 488 (1st Dept. 2013)...........................34 Matter of Rashaun S., 10 NY3d 895 (2008) .....................................21 iii iv Saarinen v. Kerr, 84 NY2d 494 (1994) .............................23, 24, 25 Salzano v. Korba, 296 AD2d 393 (2nd Dept. 2002) ..........................35 Stanton v. State of New York, 26 NY2d 990 (1970) .....................................25 Szczerbiak v. Pilat, 90 NY2d 553 (1997) .....................................27 Tutrani v. County of Suffolk, 64 AD3d 53 (2d Dept. 2009) .............................34 Williams v. City of New York, 2 NY3d 352 (2004) .................................30, n.5 STATUTES General Municipal Law § 50-h...............................4 General Municipal Law § 205-e.........................passim General Obligations Law § 11-106.......................3, 14 Vehicle and Traffic Law § 101 ........................22, 31 Vehicle and Traffic Law § 114-b ..................22, 23, 31 Vehicle and Traffic Law § 132-a...........................22 Vehicle and Traffic Law § 1104 .......................passim Vehicle and Traffic Law § 1144 ........................3, 13 STATE OF NEW YORK COURT OF APPEALS KENT FREZZELL, Plaintiff-Appellant, -against- CITY OF NEW YORK and STEVE TOMPOS, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS PRELIMINARY STATEMENT In this action against the City of New York (the “City”) and Police Officer Steve Tompos, plaintiff Kent Frezzell, a police officer employed by the New York City Police Department (“NYPD”), seeks an award of damages for personal injuries resulting from a motor vehicle accident on September 20, 2006. The accident involved two separate police vehicles driven by plaintiff and Officer Tompos. Both officers and their respective partners were responding to the same police radio transmission -- a fellow police officer’s call for assistance in the pursuit of a man with a gun. Plaintiff’s action against the City and Officer Tompos was brought pursuant to General Municipal Law § 205-e and is predicated on an alleged violation of Vehicle and Traffic Law (“VTL”) § 1104. Plaintiff appeals from an order of the Appellate Division, First Department, entered on April 23, 2013. See Frezzell v. City of New York, 105 AD3d 620 (1st Dept. 2013). The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Wright, J.), entered April 14, 2011, which granted defendants’ motion for summary judgment dismissing the complaint. QUESTIONS PRESENTED 1. Does this Court lack jurisdiction to address the issues raised on this appeal on the ground that the two-Justice dissent was not on a question of law? 2. In any event, where defendants demonstrated their entitlement to summary judgment based on an absence of proof of recklessness, and in opposition plaintiff failed to raise a triable issue of fact, did the Appellate Division correctly affirm the Supreme Court’s order granting summary judgment to defendants? 2 PROCEDURAL HISTORY AND FACTS A. The Pleadings On December 10, 2007, plaintiff commenced this action against the City and Officer Tompos, asserting three causes of action (53-63).1 The first alleged that the accident was caused by Officer Tompos’s negligent operation of his vehicle (55-60, ¶¶ 1-43). The second alleged that the action fell within the scope of General Obligations Law § 11-106 (60, ¶¶ 44-46). The third alleged a claim based on General Municipal Law § 205-e, in that defendants allegedly violated various provisions of the New York City Administrative Code, the New York City Charter, and the Rules and Regulations of the City (60-62, ¶¶ 47-52). The City served a verified answer on February 12, 2008 (64-67), and the City and Officer Tompos served an amended verified answer on June 30, 2008 (69-73). Plaintiff’s bill of particulars, dated August 7, 2008 (75-81), asserted, as predicates for plaintiff’s GML § 205-e claim, that defendants had violated VTL §§ 1104 and 1144(a)(b) [sic] (80, ¶ 24). In paragraph 15 of his bill of particulars, plaintiff presented a lengthy narrative description of the actions and inactions of Officer Tompos that allegedly caused or contributed to the accident (79). Those alleged actions and 1 Unless otherwise indicated, parenthetical references are to pages in the Record on Appeal. 3 inactions all pertained to Officer Tompos’s operation of his vehicle (id.). B. Plaintiff’s Testimony At plaintiff’s May 29, 2007 examination pursuant to GML § 50-h (83-128) and at his January 20, 2009 examination before trial 129-197), he testified as follows. At approximately 10:00 p.m. on September 20, 2006, he responded to a radio transmission from another police officer in pursuit of a man with a gun near the Douglas Houses, a public housing development in Manhattan (89-92, 140-141). The weather that night was “dry” and “clear” (93). Plaintiff, the driver of a marked NYPD vehicle, proceeded to travel eastbound on West 104th Street between Amsterdam and Columbus Avenues (90-91, 138). West 104th Street is a one-way street, with traffic flowing from west to east, and there was room “for two cars side by side” (90, 141). Vehicles were parked on both sides of the street, but no other vehicles were then being driven on that stretch of roadway (92-93). As plaintiff neared the intersection of West 104th Street and Columbus Avenue, he collided head-on with another marked police car traveling in the opposite direction, which had turned onto West 104th Street from Columbus Avenue (90- 91, 93, 138, 143). 4 Plaintiff first noticed the other NYPD vehicle seconds prior to impact while it was traveling north on Columbus Avenue, against the direction of traffic (93-94, 143). There was a traffic control light at the corner, but plaintiff did not recall whether it was red or green (149). Just prior to impact, plaintiff pulled to the right and stopped his vehicle, “hoping to avoid impact” (143). Plaintiff testified inconsistently that the other vehicle was traveling “at a high rate of speed” (id.), and also that he could not “say exactly how fast it was going,” except that “[i]t was traveling faster than I was going because I was stopped prior to that. I can’t say what it was doing” (147). Plaintiff testified that his lights and sirens were on prior to the accident (91, 142), but he was unable to recall whether the other NYPD vehicle had its lights and sirens on (94, 144). C. Testimony of Police Officer Steve Tompos On January 20, 2009, Officer Tompos testified at an examination before trial as follows (198-274). On the date of the accident, he was assigned to the Central Park Precinct and was conducting routine patrol with his partner, Police Officer Brunjes, in a radio motor patrol car (“RMP”) (204-205; 214-215). Officer Tompos was the driver of the RMP and Officer Brunjes was the recorder, or passenger (215). The RMP was a marked patrol car equipped with emergency lights affixed to the roof, as well 5 as alternating headlights, brake lights, and tail lights (216- 217). Officer Brunjes, as the recorder, was responsible for activating the lights and sirens (221). While Officer Tompos was observing traffic from the Central Park entrance at 100th Street and Central Park West, he received a radio transmission, consisting of a “1013” or “1085” announcement by “an officer screaming into the radio” that he “was in a foot pursuit running after a man with a gun” in the “projects” (218-220). Officer Tompos then heard several transmissions on the police radio, some of which were from other units responding to the scene to render assistance, and others were from officers transmitting the location of the foot pursuit as it progressed (220). Officer Tompos then proceeded to the location, driving west on 100th Street, north on Columbus Avenue, and west on 104th Street (221, 225). Seconds after Officer Tompos heard the radio transmission, Officer Brunjes activated the RMP’s lights and sirens (221-222, 223). Also seconds after the radio transmission, Officer Brunjes pressed the master switch, which activates all of the RMP’s emergency lights, including the roof lights and alternating headlights (223). Officer Brunjes used the radio to inform other units in the area that they were responding to the call, which was standard procedure (230-231, 6 245-246). It took no longer than two to three minutes to arrive at Columbus Avenue and 104th Street, traveling against the direction of traffic on West 100th Street, where traffic flows one-way in an eastbound direction, and on Columbus Avenue, where traffic flows one-way in a southbound direction (226-227). Columbus Avenue has approximately three lanes for moving traffic, and Officer Tompos drove northbound in the western-most traffic lane, changing lanes at one point because of other police vehicles parked on Columbus Avenue (228-229). When Officer Tompos reached West 104th Street, he saw the traffic light on the corner, but because he was traveling against the direction of traffic, he was unable to see what color it was at that time (231-232). He turned left, or westbound, onto West 104th Street (232). Officer Tompos drove approximately three to four car lengths, closer to the right- hand side of West 104th Street, at which point his vehicle collided with the RMP driven by plaintiff (232-233, 237). Civilian vehicles were parked along both sides of the roadway, and Officer Tompos did not recall having seen an NYPD Emergency Services Unit (“ESU”) truck or other RMPs on West 104th Street (236-237). Officer Tompos first noticed the RMP driven by plaintiff approximately two to three seconds before the 7 collision, at which point Officer Tompos’s vehicle was traveling at approximately 15 to 20 miles per hour (234-235, 237). The other RMP appeared to be traveling at approximately the same speed (235-236). Officer Tompos’s emergency lights and sirens were still activated at the time of impact (234). Officer Tompos observed that the RMP driven by plaintiff had its emergency roof lights on, but, due to the noise from his own RMP’s sirens, he was unable to determine whether plaintiff’s sirens were also on (237). When Officer Tompos first observed the approaching RMP driven by plaintiff, it “seemed to be heading over to the north side of the street,” which was the same side of the street on which Officer Tompos was driving (240). When he saw the other vehicle turning to Officer Tompos’s left, he attempted to evade the oncoming vehicle by turning his own RMP to the right (239- 240). The collision took place in the center of the roadway (238). Officer Tompos’s witness statement indicated that at the time of the accident, he was “pursuing a man with a gun” (275). An NYPD Unusual Occurrence Report stated that “[b]oth RMP’s were utilizing emergency lights and sirens but were unable to avoid a collision” (276-277). An NYPD accident report 8 prepared by the Central Park Precinct and signed by a Lt. Thomas Milano, as the “investigating supervisor,” stated (279): Officers were responding to an active foot pursuit of a man with a gun. The pursuing officers on foot made sudden change of direction causing operator to go up a one way [street]. The officer did negotiate around a parked [ESU] truck at which time he struck a housing [RMP]. Although the NYPD accident report attributed the information about the ESU truck to the “operator of Dept. vehicle” (278), Officer Tompos did not recall mentioning an ESU truck to an investigating police officer, but testified that “[t]o the best of [his] knowledge, an ESU truck was not involved” in the accident (255). He testified that he did not know why a box on the accident report was checked indicating that his siren was not on “constant,” and that, although he was working the “horn siren,” his partner was “working the siren” (257).2 D. Testimony of Officer Richard Brunjes On April 6, 2009, Police Officer Richard Brunjes testified at an examination before trial as follows (280-389). Prior to the accident, he and Officer Tompos had been performing 2 Similarly, an Accident Report prepared by the investigating supervisor of the “PSA-6” command indicated that the siren on plaintiff’s police vehicle had not been “on constant” at the time of the accident (48). 9 routine patrol (298, 303). Referring to his memo book, Officer Brunjes testified that at 10:10 p.m., they received a “1085,” a code for “officer in need of assistance” (291-292, 310). Approximately five minutes elapsed between their receiving the call and the accident (311). Officer Brunjes heard over the radio that an officer was chasing a man with a gun, eastbound through the housing projects at “approximately 100 to 104th Street and Columbus” (313, 324). Officer Brunjes heard other radio responses to the call, stating that the pursuit was headed towards Central Park (314-315). The officers discussed the transmissions and responses, as they attempted to “cut off the chase” and “catch the guy with the gun” (315). Officer Brunjes was unable to recall whether he put the RMP’s lights and sirens on, but testified that the sound of sirens was coming from all directions (317-318, 322). The officers traveled from “100th Street and Central Park West to 100th Street and Columbus to 104th and Columbus” (323). While he and Officer Tompos were traveling on Columbus Avenue, Officer Brunjes observed other police vehicles responding to the same call for assistance (330, 344). Traffic was light (351), and the highest rate of speed their RMP reached on the way to the location was 30, 35, or 40 miles per hour (370). As Officer Tompos approached the intersection of West 104th Street and Columbus Avenue, he reduced his RMP’s rate of 10 speed to approximately 10 miles per hour to negotiate the turn (370).3 At the corner of West 104th Street and Columbus Avenue, only seconds before the collision occurred, Officer Brunjes first saw the other RMP traveling towards them from about 15 feet or two car lengths away (337, 341). When Officer Brunjes first noticed plaintiff’s vehicle, Officer Tompos was driving at approximately 10 to 20 miles per hour (340). Although Officer Tompos made an evasive maneuver and turned away, there was not 3 Plaintiff now misconstrues the testimony about Officer Tompos’s speed despite earlier contrary concessions. In response to Officer Brunjes’s testimony that Officer Tompos decelerated as he approached the intersection, plaintiff’s counsel asked him if he could “approximate how much he reduced his speed” (370). Officer Brunjes answered “ten miles an hour” (id.). Plaintiff’s counsel’s two follow-up questions reflected his understanding that Officer Brunjes had testified that Officer Tompos reduced his vehicle’s speed to ten miles per hour (370-371). Officer Brunjes gave no indication that plaintiff’s counsel had misunderstood his testimony. In moving for summary judgment, defendants summarized Officer Brunjes’s testimony, including his statement that Officer Tompos reduced his vehicle’s speed to 10 miles per hour when he approached the intersection (19, ¶ 12). In opposition, plaintiff stated that “the City has adequately laid out the parties[’] testimony with respect to how this accident occurred as well as the deposition testimony of the passenger in the City vehicle, Richard Brunjes” (396, ¶ 21). The Appellate Division noted, “in particular,” that Officer Brunjes had testified that Officer Tompos reduced his vehicle’s speed to ten miles per hour as it approached the intersection. 105 AD3d at 620. Nevertheless, on appeal to this Court, plaintiff repeatedly states inaccurately that Officer Tompos reduced his vehicle’s speed by ten miles per hour and, therefore, that the speed of the vehicle was higher than ten miles per hour when it turned onto 104th Street (App. Br. p. 14, n.5; p. 23). 11 enough time to avoid collision (349). Officer Brunjes testified that he did not see an ESU vehicle in the area, but there were several other police vehicles in the area (343-344). In response to further questioning based upon the accident report’s reference to a parked ESU vehicle, Officer Brunjes testified that he did not recall whether an ESU vehicle was parked in the area or whether Officer Tompos had driven around such a vehicle (365). E. Defendants’ Motion for Summary Judgment On November 18, 2010, defendants moved for summary judgment, arguing that (i) a negligence claim was barred by the firefighter’s rule; (ii) plaintiff’s General Municipal Law § 205-e claims relying on the specified Administrative Code and Charter sections and Rules and Regulations of the City were untenable because the sections cited as predicates did not pertain to the subject matter of the lawsuit; (iii) as to any alleged violation of the VTL, the reckless disregard standard of VTL § 1104 applied, and, as a matter of law, Officer Tompos was not reckless in his operation of his vehicle (8-37). Plaintiff, opposing the motion, conceded that his negligence cause of action should be dismissed and that the cited Administrative Code and Charter sections and cited rules and regulations were inapplicable (392-393, ¶ 7; 394, ¶ 11). He 12 nevertheless argued, inter alia, (i) that VTL §§ 1104 and 1144 were appropriate statutory predicates for his suit pursuant to General Municipal Law § 205-e;4 and (ii) that there was a triable question of fact as to whether Officer Tompos drove in “an extended pattern [of] reckless disregard” for the safety of others, noting, in particular, that Officer Tompos had driven westbound on West 104th Street against the direction of traffic (395-396). Defendants submitted a reply affirmation (404-413). DECISION AND ORDER OF THE SUPREME COURT The Supreme Court granted summary judgment to defendants and dismissed the complaint (5-7). The Court noted that both police vehicles were responding to a fellow-officer’s call stating that he was in pursuit of a man wielding a gun (6). The Court observed that both drivers claimed to have had their sirens and dome lights activated, that the vehicle driven by Officer Tompos was proceeding against the flow of traffic and that, although both drivers attempted to avoid collision, the vehicles hit almost head-on, two to three car lengths into the block from Columbus Avenue (6). The Court also emphasized that 4 On appeal to the Appellate Division, plaintiff abandoned his claim that VTL § 1144, which requires that a vehicle keep to the right upon the immediate approach of an authorized emergency vehicle, could serve as a statutory predicate for his GML § 205- e claim, and consequently dropped the allegation that a triable question of fact remained as to whether Officer Tompos had pulled fully over to the right upon the approach of plaintiff’s emergency vehicle. 13 the police vehicles were each traveling at 15 to 20 miles per hour, and that their operators were looking for an armed suspect or a fellow police officer in peril (7). The Court reasoned that although General Municipal Law § 205-e and General Obligations Law § 11-106 give police officers some rights of action in personal injury matters, VTL § 1104(e) “bars 20-20 hindsight [] in analyzing an officer’s spur of the moment reaction to an exigent situation” (7). In those situations, there must be a showing of recklessness, which requires a finding that (id.): the actor has intentionally 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 disregard of the outcome. The Court concluded that, “[a]t best, the plaintiff has alleged mere negligence, which under the Vehicle and Traffic Law is not sufficient in this case” (7). THE PARTIES’ SUBMISSIONS IN THE APPELLATE DIVISION In his main brief in the Appellate Division, plaintiff argued, as he had in the Supreme Court, that questions of fact precluded the granting of summary judgment to defendants (App. Br. pp. 10-13). The alleged questions of fact he identified were whether Officer Tompos’s view of the intersection was 14 blocked by an ESU truck parked at the corner of 104th Street; whether the lights and sirens on Officer Tompos’s vehicle had been on or off at the time of the accident; and whether it was reckless for Officer Tompos to enter 104th Street against traffic (id.). In response, defendants argued, for the same reasons they had articulated in the Supreme Court, that the Supreme Court had properly granted defendants summary judgment due to plaintiff’s failure to raise a triable issue of fact as to any alleged recklessness in Officer Tompos’s operation of his vehicle, including driving against the flow of traffic on West 104th Street (Resp. Br. pp. 13-24). In reply, plaintiff argued, for the first time, that “Officers Tompos and Brunjes could never even affirmatively demonstrate that they had ever bothered to advise other police officers of where they were” (App. Reply Br. p. 5). Plaintiff argued that by virtue of the alleged failure of Officers Tompos and Brunjes to advise their supervisors of their intent to respond to their fellow-officer’s call for assistance, defendants had failed to demonstrate, as a matter of law, that Officer Tompos had not operated his vehicle in a reckless manner (App. Reply Br. pp. 7-8, 9). Plaintiff speculated that “[h]ad these officers kept supervisors aware of their location as they 15 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” (App. Reply Br. p. 7). Plaintiff argued that “[t]he failure to advise and its effect” constituted “a material question of fact which remains unrequited [sic]” (id.). DECISION AND ORDER OF THE APPELLATE DIVISION The Appellate Division affirmed the order of the Supreme Court, finding that defendants had established their entitlement to summary judgment as a matter of law. 105 AD3d at 620. The Court found that “defendants’ proof established that defendant Steve Tompos . . . did not act in ‘reckless disregard for the safety of others’ while operating his vehicle in the wrong direction on a one-way street” (id.). The Court noted that Officer Tompos had testified that his vehicle’s emergency lights and siren had been activated prior to the accident, and that he had veered to his right in an attempt to avoid impact (id.). The Court further noted Officer Brunjes’s testimony that Officer Tompos had reduced his speed to 10 miles per hour as he turned onto the street where the accident occurred (id.). The Court characterized plaintiff’s testimony that Officer Tompos’s vehicle had been moving at a “high” rate of speed as “conclusory and speculative,” particularly because plaintiff also admitted that he was unable to estimate the speed of Officer Tompos’s 16 vehicle (id.). The Court determined that, in opposition to defendants’ motion, plaintiff had failed to raise a triable issue of fact. 105 AD3d at 621. The Court further determined that there was no evidence that Officer Tompos’s view of traffic had been obstructed, and that “evidence that his siren was not on constantly did not rise to the level of conduct required to meet the ‘reckless disregard’ standard” (id.). The dissenting justices were of the opinion that questions of fact precluded summary dismissal of the complaint. The issues cited included (1) “whether an ESU vehicle blocked Tompos’s view of the intersecting street,” and (2) “whether or not the lights and siren on the Tompos vehicle had been activated.” 105 AD3d at 622. The dissenting justices were of the view that (105 AD3d at 623): 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, constituted reckless disregard. In reaching that conclusion, the dissenting justices stated, inter alia, that “[t]he police report indicates that an ESU vehicle obstructed Tompos’s view of the intersection” and that “Tompos admitted that he and his partner had never been directed by any superior to respond to the call and admitted 17 that they did so without advising command of their intentions or their position, notwithstanding the fact that multiple units were responding to the call.” 105 AD3d at 621, 622. RELEVANT STATUTES Vehicle and Traffic Law § 101. Authorized emergency vehicle Every ambulance, police vehicle or bicycle, correction vehicle, fire vehicle, civil defense emergency vehicle, emergency ambulance service vehicle, blood delivery vehicle, county emergency medical services vehicle, environmental emergency response vehicle, sanitation patrol vehicle, hazardous materials emergency vehicle and ordnance disposal vehicle of the armed forces of the United States. § 114-b. Emergency operation The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service. § 132-a. Police vehicle Every vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special 18 duties. Any other vehicle operated by a chief or deputy or assistant chief of a police department, a sheriff, undersheriff or regular deputy sheriff, and a vehicle owned and operated by the law enforcement unit of a public or private corporation authorized by law to maintain a unit for the enforcement of law on the property of such corporation shall be a police vehicle only for the purposes of section one hundred one of this chapter. § 1104. Authorized emergency vehicles (a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated. (b) The driver of an authorized emergency vehicle may: 1. Stop, stand or park irrespective of the provisions of this title; 2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation; 3. Exceed the maximum speed limits so long as he does not endanger life or property; 4. Disregard regulations governing directions of movement or turning in specified directions. (c) Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp so that from any direction, 19 under normal atmospheric conditions from a distance of five hundred feet from such vehicle, at least one red light will be displayed and visible. (d) An authorized emergency vehicle operated as a police, sheriff or deputy sheriff vehicle may exceed the maximum speed limits for the purpose of calibrating such vehicles' speedometer. Notwithstanding any other law, rule or regulation to the contrary, a police, sheriff or deputy sheriff bicycle operated as an authorized emergency vehicle shall not be prohibited from using any sidewalk, highway, street or roadway during an emergency operation. (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 consequences of his reckless disregard for the safety of others[.] POINT I THIS COURT LACKS JURISDICTION TO HEAR THIS APPEAL BECAUSE NO QUESTION OF LAW IS PRESENTED AND, THEREFORE, THE APPEAL SHOULD BE DISMISSED. Plaintiff claims that CPLR 5601(a) provides a jurisdictional basis for this appeal (App. Br. p. 4). CPLR 5601(a) requires that, for Court of Appeals jurisdiction to exist, there be, at the Appellate Division, a “dissent by at least two justices on a question of law in favor of the party taking such appeal.” Yet the two justices dissenting in this case would have reversed the order of the Supreme Court only on 20 the ground that purported questions of fact precluded the grant of summary judgment to defendants. Defendants submit that since the two-justice dissent was not based on a question of law but merely on purported questions of fact, this Court is without jurisdiction to review the Appellate Division’s order. Guaspari v. Gorsky, 29 NY2d 891 (1972) (dismissing appeal where neither of the dissents in the Appellate Division was on a stated question of law that would be reviewable in the Court of Appeals). Moreover, to the extent that the dissent was based on an argument that was not preserved, it also was not based on a question of law. See Merrill v. Albany Medical Center, 71 NY2d 990, 991 (1988) (“although the dissent in the present case purports to address questions of law, an examination of the full record reveals that the arguments upon which the dissent is predicated were not raised by appellant in the trial court”). See also Matter of Rashaun S., 10 NY3d 895, 896 (2008) (“[b]ecause the specific argument accepted by the dissenters below was not preserved, the dissent is not on a question of law”). Accordingly, the appeal should be dismissed. Plaintiff argues in support of reversal that “substantial credibility issues abound,” identifying numerous alleged questions of fact that precluded the grant of summary 21 judgment (App. Br. pp. 17, 26). Plaintiff does not claim that the dissent at the Appellate Division was on a question of law. In any event, as discussed below, the issues the Appellate Division dissent identified are not genuine triable issues of fact and/or were not preserved for this Court’s review. POINT II THE APPELLATE DIVISION CORRECTLY AFFIRMED THE SUPREME COURT’S FINDING THAT DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT BASED ON AN ABSENCE OF PROOF OF RECKLESSNESS AND BECAUSE PLAINTIFF FAILED TO DEMONSTRATE THE EXISTENCE OF A TRIABLE ISSUE OF FACT. If this Court does not dismiss the appeal for lack of subject-matter jurisdiction, it should affirm the order of the Appellate Division. The Appellate Division correctly determined that defendants met their prima facie burden in support of summary judgment and, in opposition, plaintiff failed to raise a triable issue of fact regarding Officer Tompos’s alleged reckless operation of his vehicle. At the time of the accident, Officer Tompos was operating a police vehicle, indisputably an “authorized emergency vehicle,” and that vehicle was involved in an “emergency operation” as those terms are defined, respectively, in VTL §§ 132-a, 101, and 114-b. Indeed, it is not disputed that Officer Tompos was operating an authorized emergency 22 vehicle which was engaged in “[p]ursuing an actual or suspected violator of the law, or responding to . . . [a] police call . . . or other emergency.” VTL § 114-b. In Saarinen v. Kerr, 84 NY2d 494, 501 (1994), this Court determined that, notwithstanding the reference to a driver’s “duty to drive with due regard for the safety of all persons” contained in VTL 1104(e), “a police officer’s conduct in pursuing a suspected lawbreaker 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 Court further stated (id.): 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 intentionally 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 (citations omitted). While acknowledging “reckless disregard” as the applicable standard in the present case, plaintiff nevertheless argues before this Court that defendants 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” (App. Br. 20). Plaintiff’s 23 statement of the standard that moving defendants must meet under VTL § 1104(e) is mistaken. Plaintiff incorrectly introduces a negligence standard and couples it with a recklessness standard. In Saarinen, this Court put any such argument to rest, stating, with regard to the “recklessness” standard of care (84 NY2d at 501): The use of this higher standard is compelled by the plain language of Vehicle and Traffic Law § 1104(e). Indeed, the Legislature’s specific reference to “the consequences of [the driver’s] reckless disregard for the safety of others” (emphasis supplied) would be unnecessary and, in fact, inexplicable if the conventional criterion for negligence –- reasonable care under the circumstances -– were the intended standard. As further explained in Saarinen, VTL § 1104 “represents a recognition that the duties of police officers and other emergency personnel often bring them into conflict with the rules and laws that are intended to regulate citizens’ daily conduct and that, consequently, they should be afforded a qualified privilege to disregard those laws where necessary to carry out their important responsibilities.” 84 NY2d at 502. Implementing that privilege requires that civil liability be based on an enhanced “reckless disregard” standard. Id. In Kabir v. County of Monroe, 16 NY3d 217, 220 (2011), this Court reiterated that if a driver of an emergency vehicle 24 involved in an emergency operation engages in conduct enumerated in VTL § 1104(b), then, under VTL § 1104(e), liability may only be based on proof that the driver acted with “reckless disregard for the safety of others.” In the instant case, Officer Tompos engaged in precisely the conduct enumerated in VTL § 1104(b) by traveling against the flow of traffic on Columbus Avenue and on West 104th Street. VTL § 1104(b)(4). Thus, the Appellate Division correctly determined that the applicable standard of care is “reckless disregard.” The dissenting justices were also in agreement with the majority on that controlling legal principle, but somehow believed that questions of fact remained as to whether Officer Tompos had acted with “reckless disregard” in driving against the flow of traffic on West 104th Street. However, as detailed below, the majority opinion correctly determined that, as a matter of law, Officer Tompos did not operate his vehicle in a reckless manner. In Stanton v. State of New York, 26 NY2d 990 (1970), this Court found that a police officer engaged in a high speed chase, at times reaching 100 miles per hour, traveling southbound in a northbound lane of a highway, was “not liable for damages sustained, even by innocent parties.” In Saarinen, 84 NY2d at 502, this Court granted a municipality summary judgment where an officer on an emergency call exceeded the 25 speed limit by 25 miles per hour on a wet roadway in a populated neighborhood. The record evidence demonstrates that just prior to the accident, all four officers, in the two RMPs, were keeping a watch out for a suspect with a gun and a fellow officer in distress. Officer Tompos slowed his vehicle to 10 miles per hour as he turned onto West 104th Street, and he attained a speed of no more than 20 miles per hour after making the turn (340, 370, 371). It is uncontradicted, throughout 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 two police reports, plaintiff’s and Officer Tompos’s sirens may not have been on a “constant” setting –- a circumstance the Appellate Division correctly found did not rise to the level of “reckless disregard” (48, 94, 144, 221, 223). Plaintiff, himself, did not recall whether Officer Tompos’s lights or siren were on (94, 144). Notably, however, plaintiff’s testimony established that his own view down West 104th Street to Columbus Avenue was unimpeded, and he conceded that, prior to the collision, he had seen Officer Tompos’s vehicle heading northbound on Columbus Avenue even before Officer Tompos turned onto West 104th Street (93-94, 143; 400- 26 401, ¶¶ 5-6). Thus, contrary to the Appellate Division dissent, whether Officer Tompos’s vehicle had its lights and sirens on or off, plaintiff did not identify a triable issue of fact sufficient to bar summary judgment. In any event, pursuant to VTL §§ 1104(b)(4) and 1104(c), Officer Tompos was empowered to proceed against traffic on West 104th Street without lights and sirens engaged, and such actions would not, in and of themselves, constitute recklessness. See Szczerbiak v. Pilat, 90 NY2d 553, 557 (1997) (officer’s conduct was not reckless, notwithstanding the fact that the officer’s vehicle’s siren and lights were not activated). In this case, the dissenting Justices speculated, as did plaintiff, that Officer Tompos’s view may have been obstructed by an ESU truck parked near the accident location, but even if such a truck was present, no witness testified to having an obstructed view. Moreover, the police accident report’s statement that “the officer did negotiate around a parked [ESU] truck at which time he struck a housing [RMP]” (278) suggests a careful, or at the very least, non-reckless, movement of the vehicle by Officer Tompos. The dissent is premised on an erroneous reading of the police accident report as having stated that “an ESU vehicle obstructed Tompos’s view of the intersection and thus of plaintiff’s vehicle.” 105 AD3d at 622. The Appellate Division majority correctly determined 27 that the record contains no evidence to that effect. Thus, the alleged presence of an ESU truck did not give rise to a triable issue of fact. Plaintiff also erroneously reads the accident report as stating that the ESU truck was parked on the right side of the street (App. Br. p. 9). The report does not describe on which side of the street the ESU vehicle was allegedly parked (278). Thus, nothing in the report calls Officer Tompos’s credibility into question (App. Br. pp. 9-10). In any event, in order to enter West 104th Street from Columbus Avenue, Officer Tompos turned left (232). According to the dissent, Officer Tompos entered West 104th Street “in disregard of the traffic signal.” 105 AD3d at 623. Because Officer Tompos was exercising the privilege of driving against the direction of traffic (VTL § 1104(b)(4)), however, he was not aware of whether the traffic control was red or green for eastbound traffic on West 104th Street or, conversely, for traffic on Columbus Avenue. Plaintiff, whose vehicle was proceeding eastbound on West 104th Street and who, therefore, did have a clear view of the traffic signal, also did not know whether the signal was red or green for eastbound traffic. Thus, contrary to the dissenting opinion, plaintiff did not raise a triable issue of fact pertaining to the traffic 28 control signal at the intersection of Columbus Avenue and West 104th Street. The dissent also erroneously found the existence of a question of fact premised, in part, on an issue improperly raised by plaintiff for the first time in his reply brief in the Appellate Division (Plaintiff’s Appellate Division Reply Brief, pp. 5-7), i.e., whether Officer Tompos was given “permission” to respond to a fellow officer’s call for assistance. Since plaintiff did not make that argument until he filed his reply on appeal, defendants had no opportunity to respond to it in the Supreme Court and, as set forth in Point I, supra, this Court does not have jurisdiction to address it. See Merrill v. Albany Medical Center, 71 NY2d at 991 (explaining that, while the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the Court of Appeals may not address such issues in the absence of objection in the trial court). Even in raising that issue, however, plaintiff failed to cite to any rule or requirement forbidding Officer Tompos’s response to an emergency radio call without specific authorization from a supervisor, much less one that could serve 29 as a predicate for his GML § 205-e cause of action.5 Moreover, even if such an argument were tenable, it would not create a triable issue of fact with respect to plaintiff’s GML § 205-e cause of action predicated on a violation of VTL § 1104. The dissenting justices simply assumed, without a factual basis, that it was wrong for Officer Tompos to respond to his fellow officer’s call for help without awaiting a specific directive, or requesting permission to do so, notwithstanding the uncontroverted fact that Officer Brunjes used the radio to inform other units in the area that they were responding to the call (230-231, 245-246).6 105 AD3d at 621, 623. Absent a factual basis, apart from the additional absence of preservation, this argument does not warrant denial of summary judgment. More critically, the sole potential predicate for liability in this case is VTL § 1104 and, therefore, the only issue on appeal is whether Officer Tompos operated his vehicle 5 “As a prerequisite to recovery under GML § 205-e, a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties.” Williams v. City of New York, 2 NY3d 352, 364 (2004); accord Desmond v. City of New York, 88 NY2d 455, 464 (1996). 6 Plaintiff does not acknowledge Officer Tompos’s testimony that Officer Brunjes used the radio to notify other units of their involvement (App. Br. pp. 7, 11-12). He cites to no contrary evidence in the record. 30 with reckless disregard for the safety of others. The reckless disregard standard applies to any operation of an “authorized emergency vehicle,” as defined by VTL § 101, involved in an “emergency operation,” as that term is defined by VTL § 114-b. VTL § 1104 applies in this case regardless of the circumstances that led to Officer Tompos’s involvement, including whether such response was approved by a supervisor. The majority opinion in the Appellate Division correctly found that, as a matter of law, Officer Tompos did not operate his vehicle recklessly. Plaintiff cites a number of Appellate Division rulings in cases arising under VTL § 1104 in which summary judgment was denied to defendants or in which the plaintiffs’ jury verdicts were sustained on the question of reckless disregard on the part of the operators of police vehicles, but the records developed in those cases were markedly dissimilar to the case at bar, particularly with regard to the speed at which the police vehicles were being driven. In O’Connor v. City of New York, 280 AD2d 309 (1st Dept.), appeal denied, 96 NY2d 716 (2001) (App. Br. p. 24), the Court sustained a jury verdict finding reckless disregard where the police driver of an unmarked vehicle that was not equipped with a turret light or siren “approached the intersection where the accident occurred at high speed against the flow of traffic on a one-way street, and then entered the intersection without blowing the horn or giving any other type 31 of warning, and without slowing down.” Here, in contrast, the accident occurred after Officer Tompos slowed down to 10 miles per hour to negotiate his turn at the intersection, the police vehicle was marked, and no material question of fact exists concerning the operation of lights and sirens. Indeed, although neither plaintiff nor Officer Brunjes specifically recalled whether the lights and sirens were activated on Officer Tompos’s vehicle at the time of the accident, Officer Tompos testified that Officer Brunjes had activated them. Moreover, plaintiff testified that he saw Officer Tompos’s vehicle on Columbus Avenue even before it turned onto West 104th Street. Officer Tompos’s low rate of speed and slowing to 10 miles per hour at the corner precludes any finding of reckless disregard. Nor do the facts at bar resemble those in Burrell v. City of New York, 49 AD3d 482 (2d Dept. 2008) (App. Br. p. 21), in which summary judgment for defendants was reversed where a police vehicle, operating during inclement weather, passed through a red traffic signal. Additionally, in Burrell, there was a conflict in testimony as to “whether the officer operating the vehicle accelerated, rather than slowed down, as she approached the intersection,” and there existed an issue of fact as to whether the defendant police officer’s view of the intersection was obstructed by a parked vehicle. Id. at 483. 32 Similarly, in Badalamenti v. City of New York, 30 AD3d 452 (2d Dept. 2006) (App. Br. p. 21), evidence was adduced showing that the driver did not stop at a stop sign, that his view was partially obstructed by a parked truck, and that he accelerated his speed before entering the intersection. In addition, unlike the situation here, the Court determined that summary judgment was precluded by a question of fact as to whether the defendant police officer had activated the turret lights and siren on his vehicle before proceeding into the intersection. Likewise, in Corallo v. Martino, 58 AD3d 792, 793 (2d Dept. 2009) (App. Br. p. 21), the Court found questions of fact as to whether the officer “slowed down his police vehicle prior to entering the intersection against a red light, checked for oncoming traffic before entering the intersection, [or] activated the siren on his vehicle before proceeding into the intersection.” Here, in contrast, Officer Tompos slowed down to 10 miles per hour when he entered West 104th Street, and he accelerated to no more than 20 miles per hour thereafter. Elnakib v. County of Suffolk, 90 AD3d 596 (2d Dept. 2011), which was cited in the dissenting opinion, is unlike the present case. There, the Court found that the police officer’s operation of his vehicle, which included driving through a stop sign at a view-obstructed intersection at a high rate of speed, estimated by two eyewitnesses to be 50 miles per hour, 33 constituted reckless disregard for the safety of others. The facts in Tutrani v. County of Suffolk, 64 AD3d 53 (2d Dept. 2009), which was also cited in the dissenting opinion, bear no resemblance to the facts here. In Tutrani, the Court determined that the defendant police officer’s operation of his vehicle rose to the level of “reckless disregard” when he abruptly changed lanes, cutting plaintiff off, and suddenly stopped his vehicle in rush-hour traffic moving at 40 miles per hour. The present case more closely resembles Quock v. City of New York, 110 AD3d 488 (1st Dept. 2013), where the case against the police officer driver and the City was dismissed. In that case, the operator of a police vehicle responding to a report of a crime in progress was found not to have acted recklessly where she activated her lights and sirens immediately upon entering the vehicle, and reduced her speed as she approached the accident intersection. Although she thereafter accelerated to “a mere five miles per hour above the applicable speed limit,” she looked in the direction of oncoming traffic. The Court found that the officer’s failure to see the other vehicle until just before the accident did not render her conduct reckless. Even if admissible evidence supported plaintiff’s assertions concerning the ESU truck and lights and sirens, this 34 case would be markedly similar to Salzano v. Korba, 296 AD2d 393 (2nd Dept. 2002), in which summary judgment was granted to the police defendants. There, the Court held that even though an officer’s view was partially obstructed by a tree and the steep uphill slope of a street he entered from a parking lot, and even though the officer did not use his emergency lights or siren, the officer’s blind entry into a four-lane highway and the path of plaintiff’s vehicle without stopping at a posted stop sign, at a low rate of speed, did “not rise to the level of recklessness.” See also Nikolov v. Town of Cheektowaga, 96 AD3d 1372 (4th Dept. 2012) (police officer did not act in “reckless disregard” for the safety of others, where he proceeded through a red light at a speed of 15 miles per hour, even if he “experienced a short-term reduction in visibility of the intersection where the collision occurred” and, further assuming that he did not engage his vehicle’s lights and sirens). For all of the reasons stated, the Appellate Division properly affirmed the order granting defendants’ motion for summary judgment and dismissing the complaint. Assuming no jurisdictional impediment requiring this Court’s dismissal of the appeal, the order of the Appellate Division should be affirmed. 35 36 CONCLUSION PLAINTIFF’S APPEAL SHOULD BE DISMISSED FOR LACK OF JURISDICTION. IF THIS COURT FINDS NO JURISDICTIONAL IMPEDIMENT, THE ORDER OF THE APPELLATE DIVISION SHOULD BE AFFIRMED, WITH COSTS. Respectfully submitted, ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for Defendants- Respondents. By: /s/ VICTORIA SCALZO Assistant Corporation Counsel KRISTIN M. HELMERS, VICTORIA SCALZO, of Counsel. February 27, 2014