Opinion
INDEX No. 5662/2016
03-31-2021
JAVID ABEDI, Plaintiff, v. COUNTY OF SUFFOLK, PAUL P. RUOTOLO, BAY SHORE ENTERPRISES, INC., and SALEEM SHEIKH, Defendants.
SIBEN & SIBEN, LLP Attorney for Plaintiff 90 East Main Street Bay Shore, New York 11706 FARBER BROCKS & ZANE, LLP Attorney for Defendants Bay Shore Enterprises and Saleem Sheikh 400 Garden City Plaza, Suite 100 Garden City, New York 11530 DENNIS M. BROWN, ESQ. Suffolk County Attorney Attorney for Defendants County of Suffolk and Paul P. Ruotolo 100 Veterans Memorial Highway Hauppauge, New York 11788
SHORT FORM ORDER CAL. No. 201901569MV PRESENT: Hon. DAVID T. REILLY Justice of the Supreme Court MOTION DATE 10/2/19 (002)
MOTION DATE 1/6/20 (003)
ADJ. DATE 7/8/20
Mot. Seq. # 002 MG
Mot. Seq. # 003 MD; CASEDISP SIBEN & SIBEN, LLP
Attorney for Plaintiff
90 East Main Street
Bay Shore, New York 11706 FARBER BROCKS & ZANE, LLP
Attorney for Defendants Bay Shore
Enterprises and Saleem Sheikh
400 Garden City Plaza, Suite 100
Garden City, New York 11530 DENNIS M. BROWN, ESQ.
Suffolk County Attorney
Attorney for Defendants County of Suffolk
and Paul P. Ruotolo
100 Veterans Memorial Highway
Hauppauge, New York 11788
Upon the following papers numbered read on these motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by the Bayshore defendants, dated September 3, 2019, and by County of Suffolk, dated December 5, 2019; Notice of Cross Motion and supporting papers by plaintiff, dated February 16, 2020 and; Answering Affidavits and supporting papers by plaintiff, dated February 16, 2020 and June 18, 2020; Replying Affidavits and supporting papers by the Bayshore defendants, dated February 26, 2020, and by County of Suffolk, dated July 15, 2020; Other ___; it is
ORDERED that the motion (#002) by defendants Bay Shore Enterprises, Inc. and Saleem Sheikh and the motion (#003) by defendants County of Suffolk and Paul Ruoloto hereby are consolidated for the purposes of this determination; and it is
ORDERED that the motion by defendants Bay Shore Enterprises, Inc. and Saleem Sheikh seeking summary judgment dismissing the complaint is granted; and it is further
ORDERED that the motion by defendants County of Suffolk and Paul Ruoloto seeking summary judgment dismissing the complaint is denied; and it is further
ORDERED that the Court, on its own motion, grants summary judgment to defendants County of Suffolk and Paul Ruoloto dismissing plaintiff's complaint against them.
Plaintiff Javid Abedi commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Fifth Avenue and Wisconsin Court in the Town of Islip on September 2, 2015. Plaintiff, by his complaint, alleges that he was chased from the convenience store of the BP gas station operated by defendant Saleem Sheikh and owned by defendant Bay Shore Enterprises into the middle of Fifth Avenue, where he was struck by the vehicle owned by defendant County of Suffolk and operated by defendant Paul Ruotolo. At the time of the accident, plaintiff was a pedestrian and Paul Ruotolo was a police officer with the Suffolk County Police Department (SCPD) operating an SCPD motor vehicle during the course of his employment.
Defendants Bay Shore Enterprises and Saleem Sheikh (collectively referred to as the "Bay Shore Enterprise defendants") now move for summary judgment on the basis that they did not owe a duty to plaintiff and were not a proximate cause of the injuries he sustained due to the subsequent motor vehicle accident. In particular, the Bay Shore Enterprise defendants contend that the mere occasion of the chase of plaintiff by defendant Sheikh was not the proximate cause of plaintiff being struck by an SCPD motor vehicle. The Bay Shore Enterprise defendants also assert that defendant Sheik is entitled to the protections of his corporate status since no facts have been alleged to show that he acted outside of his corporate capacity as the owner of defendant Bay Shore Enterprises during his interactions with plaintiff.
In support of the motion, the Bay Shore Enterprise defendants submit copies of the pleadings, the parties' deposition transcripts, plaintiff's General Municipal Law § 50-h hearing transcript, and the certified SCPD accredited law enforcement witness statements of plaintiff and nonparty witness Alexandria Haines. Plaintiff opposes the motion on the grounds that there a material triable issues of fact as to whether the Bay Shore Enterprise defendants owed him a duty of care. Specifically, plaintiff asserts that defendant Sheikh's conduct in chasing him when defendant Sheik observed that he was visibly intoxicated was negligent and was the proximate cause of his accident and resultant injuries. Plaintiff further asserts that defendant Sheikh as a shopkeeper owed him a duty of care, and is responsible for the injuries he sustained.
A Court's task on a motion for summary judgment is issue finding rather than issue determination (see Sillman v Twentieth Century Fox Film Corp ., 3 NY2d 395, 165 NYS2d 498 [1957]), and it must view the evidence in the light most favorable to the party opposing the motion (see Boyce v Vazquez , 249 AD2d 724, 671 NYS2d 815 [3d Dept 1998]). Therefore, in determining a motion for summary judgment, the facts alleged by the nonmoving party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]). In the first instance, the moving party bears the burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v New York Univ . Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). However, a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault ( Rodriguez v City of New York , 31 NY3d 312, 324, 76 NYS3d 898 [2018]). Once such showing has been made, the burden shifts to the nonmoving party to demonstrate the existence of material issues of fact (see Alvarez v Prospect Hosp ., 68 NY2d 320, 508 NYS2d 923 [1986]). Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]; Perez v Grace Episcopal Church , 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]).
To set forth a prima facie case of negligence, a plaintiff must demonstrate that the defendant owed him or her a duty, that a breach of such duty occurred, and that the injury suffered by the plaintiff was a proximate cause of that breach (see Boltax v Joy Day Camp , 67 NY2d 617, 499 NYS2d 660 [1986]). As a result, in any negligence action the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff (see Gilson v Metropolitan Opera , 5 NY3d 574, 807 NYS2d 588 [2005]; Espinal v Melville Snow Contrs., 98 NY2d 136, 746 NYS2d 210 [2002]). While landowners and business proprietors have a duty to maintain their property in a reasonably safe condition, that duty is not without limits (see DiPonzio v Riordan , 89 NY2d 578, 657 NYS2d 377 [1997]; Lee v New York City Hous. Auth., 25 AD3d 214, 803 NYS2d 508 [1st Dept 2005]). The existence and scope of the duty is defined by whether the plaintiff was within the zone of foreseeable harm and whether the accident was within the reasonably foreseeable risks (see Gordon v New York , 70 NY2d 839, 523 NYS2d 445 [1987]; Dance Magic , Inc v Pike Realty , Inc., 85 AD3d 1083, 926 NYS2d 588 [2d Dept 2011]). "Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated" ( DiPonzio v Riordan , supra at 583). The negligence complained of by the plaintiff must have caused the occurrence of the accident from which the injuries flow ( Sacher v Beacon Assoc. Mgt. Corp., 114 AD3d 655, 657, 980 NYS2d 121 [2d Dept 2014]), such that there is a distinction in the law between a condition that merely sets the occasion for or facilitates an accident, and an act that is a proximate cause of the accident (see Ventricelli v Kinney Sys . Rent A Car , 45 NY2d 950, 411 NYS2d 555 [2d Dept 1978]). Thus, an intervening act will be deemed a superseding cause and will serve to relieve a defendant of liability when the act is of such an extraordinary nature or so attenuates the defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant (see Kush v City of Buffalo , 59 NY2d 26, 33, 462 NYS2d 831 [1983]; see Derdiarian v Felix Contr . Corp., 51 NY2d 308, 434 NYS2d 166 [1980]). However, where an intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist ( Jones v Saint Rita's R.C. Church , 187 AD3d 727, 133 NYS3d 40 [2d Dept 2020]).
Moreover, an injured plaintiff's own reckless and extraordinary conduct can constitute an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendant (see Tisdell v Metropolitan Transp . Auth., 139 AD3d 844, 30 NYS3d 701 [2d Dept 2016]). To establish that a plaintiff was the sole proximate cause of his or her injuries, a defendant must show that the plaintiff engaged in reckless, unforeseeable or extraordinary conduct, such that the plaintiff recognized the danger and choose to disregard it (see Powers v 31 E 31 LLC , 123 AD3d 421, 998 NYS2d 23 [1st Dept 2014]). While the issue of proximate cause generally is one for the trier of fact to decide, where there is only one conclusion that may be drawn, the issue of proximate cause may be decided as a matter of law ( Howard v Poseidon Pools , 72 NY2d 974, 534 NYS2d 360 [1988]; see A .Y. v Broadway Mall Partners , L.P., 174 AD3d 952, 103 NYS3d 293 [2d Dept 2019]; Egan v Emerson Assoc., LLC , 127 AD3d 806, 6 NYS3d 600 [2d Dept 2015]).
Plaintiff testified at a General Municipal Law § 50-h hearing and at an examination before trial that prior to the accident he was a student at Suffolk County Community College and attended classes at the Brentwood campus, that he and five friends went to the Bay Shore Marina to play basketball, and that while at the marina he consumed approximately three or four eight-ounce cans of flavored beer. He testified that they left the marina around 9:30 p.m., that they stopped at the BP gas station on Fifth Avenue for a snack before heading home, and that he went inside the convenience store to purchase a snack while his friends remained in the vehicle, which was parked in the parking lot of the gas station. He testified that when he entered the store he had a blanket wrapped around him, because he was cold, that he was the only customer in the store, and that when he went to pay for his snacks, he and the cashier became involved in an altercation, because the cashier believed that he was stealing.
Plaintiff testified that in response to the cashier demanding he "show him what he was hiding" he removed the blanket and emptied all of his pockets to show the cashier that he was not hiding anything and was ready to pay for his items. He states that he threw candy at the cashier, who was behind the counter, because the cashier was yelling at him and had his hands in his face, that the cashier came around the counter and began searching his pants pockets, holding onto his arm, that he became nervous when the cashier refused to let him go, and that in an attempt to get away from the cashier, he ran out of the store, but the cashier followed him outside. Plaintiff testified that he ran toward Fifth Avenue, and that when he looked out onto Fifth Avenue, it was clear of traffic, and that he continued across the road until he reached the middle lane, the turning lane, when he thought "why am I coming this way, let me walk towards the car," which still was parked in the parking tot of the gas station. He testified that after crossing over the turning lane, while heading back towards his friend's parked vehicle, the entire right side of his body was struck by the driver's side of an SCPD vehicle operated by Suffolk County Police Officer Paul Ruotolo. Plaintiff further testified that the cashier stopped chasing him once he ran towards Fifth Avenue, that the cashier did not follow him into the street, but remained standing next to the pumps of the BP gas station, that once he exited the store, the cashier did not say anything else to him, and that he never looked back to see if the cashier was following him until he turned around and was struck by the police vehicle.
Defendant Saleem Sheikh testified at an examination before trial on behalf of himself and Bay Shore Enterprises, Inc., that he is the owner of the company, that Bay Shore Enterprises owns and operates a convenience store and gas station, that the gas station where he works, is named BP, and that he leases the name from BP, which provides guidelines on how to run the gas station. He states that the convenience store on the premises sells, among other things, grocery items, that there are a total of four gas pumps on the premises, and that the property abuts Wisconsin Court and Fifth Avenue. Defendant Sheikh states that prior to the subject accident he had interacted with plaintiff on numerous occurrences, because he was a regular customer, but did not know plaintiff's name, and that he previously had problems with plaintiff misbehaving in the store, but he would always leave when he asked him to leave. He testified that on the day of the incident he was working in the convenience store, along with one other employee, who was behind the counter. Defendant Sheikh stated did not see plaintiff when he first entered the store around 10:00 p.m., that he was working behind the counter, filling out lottery paper work, at the time, and that when he did observe plaintiff, he had a huge blanket wrapped around him, hands were on the counter, and he was shouting at the cashier. He testified that plaintiff then headed towards to the cooler at the back of the store, that the cashier informed him plaintiff always causes trouble when he comes into the store, and that he asked plaintiff "what he needed" after he observed him standing at the cooler with the door open. He testified that he asked plaintiff to close the cooler's door, which he did; that plaintiff, who appeared to be intoxicated, came back to the counter and began cursing at him and the cashier; and that he cursed back at plaintiff, told him to get out of the store, and told him he was going to call the "cops."
Defendant Sheikh states that plaintiff picked up a 12-pack box of gum and threw it at him, which struck him in his chest, that plaintiff ran from the store after he came from around the counter, and that he chased plaintiff out of the store, but stopped at the door. He states that plaintiff stopped by the gas pumps, that he ran after plaintiff again, but stopped by the BP sign on the property, and that plaintiff ran across the street. He testified that plaintiff crossed the two southbound lanes of Fifth Avenue and was at the end of the northbound lane when he turned around and went back into the store; that as his back was turned towards Fifth Avenue he heard a bang, turned around, and saw plaintiff laying on the left lane of the southbound lanes; and that he observed one SCPD vehicle stopped in the left lane of southbound Fifth Avenue and another one stopped behind in the right southbound lane.
Detective Paul Ruotolo testified at an examination before trial that he was employed by the SCPD, and that at the time of the accident he was assigned to the Third Precinct's Community Operated Police Enforcement (COPE) unit, which addresses quality of life issues in the community of the Third Precinct. He testified that when he transferred from the New York Police Department to the SCPD he underwent emergency vehicle operation control training while in the police academy, and that he was assigned to a vehicle within the COPE unit. Detective Rutolo testified that on the day of the accident he was assigned to the Mother Cabrini Festival in Brentwood at Suffolk County Community College, that his work hours were 3:00 p.m. to 11:00 p.m., and that at the time of the accident, he, along with three other officers, were returning to the Third Precinct, He testified that he was traveling in an SCPD vehicle by himself in the right lane of southbound Fifth Avenue, that there were two other officers traveling in a vehicle behind him in the left lane, that his sergeant was traveling in a vehicle directly behind him in the right lane of southbound Fifth Avenue, and that traffic was light. He testified that as he was passing the BP gas station on the westbound side of Fifth Avenue, he observed plaintiff running from his left side milliseconds before the left driver's side of his vehicle struck plaintiff, and that the impact caused plaintiff to be thrown into the left turning lane and strike the ground. Detective Ruotolo further testified that he applied his brakes and turned his steering wheel in an attempt to avoid the accident, but was unable to do so, that he did not see plaintiff standing on the sidewalk in front of the BP gas station on the westside of Fifth Avenue prior to the accident, and that plaintiff was wearing a dark brown towel wrapped around his entire upper body, including his head, at the time of the accident.
Non-party Alexandria Haines states in her certified witness statement that while she was sitting in a vehicle with the window open outside of the convenience store of the BP gas station waiting for her boyfriend to exit the store, she heard plaintiff yelling and cursing at the cashier, that she observed plaintiff throw something at the cashier, that after throwing the item at the cashier, plaintiff ran out of the store with the cashier chasing behind him, and that plaintiff ran directly across Fifth Avenue and then she heard a boom. Haines further states that she has known plaintiff since the first grade.
Under the circumstances of this ease, the Bay Shore Enterprise defendants have established prima facie their entitlement to judgment as a matter of law that defendant Sheikh was not a proximate cause of plaintiff's accident (see Sterk-Kirch v Uptown Communications & Elec ., Inc., 124 AD3d 413, 2 NYS3d 80 [1st Dept 2015]; Wadhwa v Long Is. R.R., 13 AD3d 615, 788 NYS2d 148 [2d Dept 2004]), and that plaintiff's conduct was a superseding and intervening cause, which absolved the Bay Shore Enterprise defendants of liability (see Nelson v New York City Tr. Auth., 170 AD3d 1184, 96 NYS3d 342 [2d Dept 2019]; Weimar v Metropolitan Transp. Auth., 147 AD3d 1111, 48 NYS3d 240 [2d Dept 2017]; cf. Dumbadze v Schwatt , 291 AD2d 529, 739 NYS2d 399 [2d Dept 2020]). Where the acts of the injured party or a third party intervene between defendant's conduct and the plaintiff's injury and the intervening act is independent of the defendant's conduct, and the causal connection is broken ( Elardo v Town of Oyster Bay , 176 AD2d 912, 914, 575 NYS2d 526 [2d Dept 1991]; see De'L . A. v City of New York , 158 AD3d 30, 68 NYS3d 408 [1st Dept 2017]). The Bay Shore Enterprise defendants' submissions, including plaintiff's pretrial testimony, demonstrated that when plaintiff's accident occurred, the chase by defendant Sheikh had ended, and plaintiff was returning to his friend's vehicle to head home. Moreover, plaintiff testified that prior to running into the street while being chased by defendant Sheik he stopped at the curb and checked to see if the traffic was clear before proceeding, and it was not until after he was running backs towards his friend's vehicle, which was still parked in the BP gas station parking lot, from the middle of Fifth Avenue that he was struck by the SCPD vehicle operated by Detective Rutolo. Therefore, the evidence proffered by the Bay Shore Enterprise defendants demonstrated that plaintiff's actions were the sole proximate cause of the subject accident and plaintiff's resultant injuries (see Bruno v Thermo King Corp ., 66 AD3d 727, 888 NYS2d 523 [2d Dept 2009]). Moreover, defendant Sheikh's conduct in chasing plaintiff from the store merely furnished the setting for the accident, a mere condition for the occurrence, rather than one of its actual causes (see Riccio v Kid Fit , Inc., 126 AD3d 873 [2d Dept 2015]; Sanchez v Citizens' Advice Bur., Inc., 99 AD3d 562, 952 NYS2d 529 [1st Dept 2012]). Plaintiff, in running across a busy street while covered from head to toe in a dark brown blanket, and while intoxicated, acted with such reckless and extraordinary conduct, that, by its very nature, evinced a wanton disregard for his own safety, and as a matter of law, constituted an intervening and superseding event, severing any causal nexus between the occurrence of the accident and any alleged negligence on the part of the Bay Shore Enterprise defendants (see Sang Woon Lee v II Mook Choi , 132 AD3d 969, 18 NYS3d 690 [2d Dept 2015]; Lynch v Metropolitan Transp. Auth., 82 AD3d 716, [2d Dept 2011]).
In opposition, plaintiff failed to raise a triable issue of fact (see Neenan v Quinton , 110 AD3d 967, 974 NYS2d 73 [2d Dept 2013]). Although he contends defendant Sheikh's act of chasing him out of the store while he was in an intoxicated state resulted in him being struck by an SCPD vehicle, plaintiff has failed to raise a triable issue of fact to show a nexus between defendant Sheikh's conduct in chasing him and his injuries, since there was a lapse in time between plaintiff being struck by the SCPD vehicle and defendant Sheikh chasing him from the store (see Rodriguez v Pro Cable Servs . Co. Ltd. Partnership , 266 AD2d 894, 697 NYS2d 440 [4th Dept 1999]). Nor has plaintiff established that defendant Sheikh or Bay Shore Enterprises breached any duty owed to him by chasing him out of the store after he became belligerent (see Bavisotto v Doldan , 175 AD3d 891, 107 NYS3d 533 [4th Dept 2019]). Accordingly, the Bay Shore Enterprise defendants' motion for summary judgment is granted.
Regarding the County of Suffolk's motion for summary judgment, the motion is untimely and, therefore, must be denied (see Brill v City of New York , 2 NY3d 648, 781 NYS2d 261 [2004]; Mayorquin v AP Dev , LLC , 92 AD3d 849, 939 NYS2d 129 [2d Dept 2012]; cf. Abdalla v Mazl Taxi , Inc., 66 AD3d 803, 887 NYS2d 250 [2d Dept 2009]). However, having granted summary judgment to the Bay Shore Enterprise defendants, the Court searches the record, sua sponte, and grants summary judgment to the County of Suffolk. The record demonstrates that Detective Ruotolo was faced with an emergency situation not of his own making when plaintiff, completely wrapped up in a dark brown blanket, ran in front of his vehicle, resulting in him striking plaintiff with his vehicle (see Minor v C & J Energy Savers , Inc., 65 AD3d 532, 883 NYS2d 587 [2d Dept 2009]; Marsch v Catanzaro , 40 AD3d 941, 837 NYS2d 195 [2d Dept 2007]). When one is confronted with a sudden and unexpected event or combination of events that leave little or no lime for reflection or deliberate judgment, such circumstance should enter into the determination as to whether the person acted reasonably in the situation ( Ferrer v Harris , 55 NY2d 285, 292, 449 NYS2d 162 [1982]; see Caristo v Sanzone , 96 NY2d 172, 726 NYS2d 334 [2001]). Thus, the emergency doctrine recognizes that "when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" ( Jablonski v Jakaitis , 85 AD3d 969, 970, 926 NYS2d 137 [2d Dept 2011], quoting Rivera v New York City Tr. Auth., 77 NY2d 322, 327, 567 NYS2d 629 [1991]; see Evans v Bosl , 75 AD3d 491, 905 NYS2d 254 [2d Dept 2010]; Palma v Garcia , 52 AD3d 795, 861 NYS2d 113 [2d Dept 2008]; Gajjar v Smith , 31 AD3d 377, 817 NYS2d 653 [2d Dept 2006]). As the accident occurred within seconds of Detective Ruotolo spotting plaintiff, the emergency doctrine applies, and any alleged failure by Ruotolo to exercise his best judgment is insufficient to constitute negligence (see Held v McMillan , 45 AD3d 805, 847 NYS2d 135 [2d Dept 2007]; Dormena v Wallace , 282 AD2d 425, 723 NYS2d 72 [2d Dept 2001]). Dated: March 31, 2021
Riverhead, NY
/s/_________
DAVID T. REILLY, J.S.C.