Opinion
# 2018-040-014 Claim No. 127932 Motion No. M-90877
02-05-2018
CATHY ASHLAW and ARNOLD ASHLAW v. STATE OF NEW YORK
POISSANT, NICHOLS, GRUE, VANIER & BABBIE, P.C. By: Thomas A. Grue, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
Claimant's Motion for Summary Judgment on a VTL § 1104(b) Claim denied in part and granted in part.
Case information
| UID: | 2018-040-014 |
| Claimant(s): | CATHY ASHLAW and ARNOLD ASHLAW |
| Claimant short name: | ASHLAW |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127932 |
| Motion number(s): | M-90877 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | POISSANT, NICHOLS, GRUE, VANIER & BABBIE, P.C. By: Thomas A. Grue, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 5, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimants' Motion: (1) for summary judgment pursuant to CPLR 3212, on the issue of liability is denied; (2) for summary judgment on the issue that Claimant, Cathy Ashlaw, suffered a serious injury pursuant to Insurance Law § 5102(d) is granted; and (3) to dismiss the affirmative defenses raised in Defendant's Answer is denied in part and granted as to the Seventh Affirmative Defense.
The Claim was filed with the office of the Clerk of the Court on May 12, 2016. The pertinent underlying facts of the case are not in dispute. Claimant, Cathy Ashlaw, was operating her motor vehicle in a generally northeasterly direction on County Route 38 in the Town of Norfolk, St. Lawrence County, New York, on March 2, 2016 at approximately 5:19 p.m. New York State Trooper Leah Malbeuf was driving a police cruiser in a generally northwesterly direction on County Route 49. Trooper Malbeuf failed to stop at the posted stop sign, failed to yield the right-of-way, and proceeded into the intersection of County Route 49 and County Route 38 at an impact speed of 49 miles per hour (hereinafter, "mph"). The crash speed of Defendant's vehicle was confirmed by the crash data recorder that was taken from the vehicle following the accident. County Route 38 does not have any traffic control devices or signs and vehicles traveling on that road have the right-of-way at the intersection. The un-posted speed limit in the area of the intersection was 55 mph on both roads. The calculated speed of Claimant's vehicle at the time of the accident was approximately 33 mph. At the time of the accident, the roads were covered by packed snow with sporadic areas of bare asphalt present. The impact occurred when Claimant's vehicle struck Defendant's vehicle (see Affirmation of Thomas A. Grue, Esq. [hereinafter, "Grue Affirmation"], Ex. L [New York State Police Collision Reconstruction Findings Report]) In violation of State Police Regulations, Trooper Malbeuf was operating an electronic device - the onboard computer - at the time of the collision (Grue Affirmation, Ex. O [Police Accident Report]; Ex. E [Malbeuf Deposition Transcript], p. 44).
As the cause of action relating to Arnold Ashlaw is derivative in nature, all references to Claimant shall be to Cathy Ashlaw unless otherwise noted.
At the time of the accident, Trooper Malbeuf was traveling to take a statement from a person regarding a domestic violence incident that had happened earlier in the week. The Trooper stated that she was not involved in an emergency operation and that there was no need for her to rush to her interview (Ex. E, p. 40). In fact, the dispatcher advised Trooper Malbeuf that the individual was still at work and also would be traveling to the meeting place. As a result, Trooper Malbeuf said that she continued to work on an unrelated project with another Trooper at the State Police station in Winthrop, New York for a period of time before departing to travel to the meeting (id., pp. 35-37).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965]), affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facieshowing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
When the driver of an authorized emergency vehicle, including a police vehicle, is involved in an emergency operation, he or she is permitted by statute to engage in privileged conduct that otherwise would be prohibited by certain traffic laws and/or regulations, and the driver is protected from liability for injury to person or property, unless the driver's conduct is found to have breached the reckless disregard standard of care (Kabir v County of Monroe, 16 NY3d 217, 220 [2011]; Rouse-Harris v City of Schenectady Police Dept., 124 AD3d 1124, 1125 [3d Dept 2015]; see VTL § 1104[a], [e]). The specific privileged conduct is found in VTL § 1104(b) and, as pertinent here, involves proceeding "past … a stop sign, but only after slowing down as may be necessary for safe operation" (VTL § 1104 [b][2]).
At the time of the accident, Trooper Malbeuf was driving a police cruiser and was responding to a police dispatch to take a statement from a complainant in a domestic dispute. As such, she was driving an authorized emergency vehicle, and, according to case law, was involved in an emergency operation within the meaning of VTL §§ 101 and 114-b even though she herself did not regard the situation to be an emergency and, indeed, there appears to have been no urgency attached to her response to the interview request (Criscione v City of New York, 97 NY2d 152, 157-158 [2001]; O'Banner v County of Sullivan, 16 AD3d 950, 952 [3d Dept 2005]). Trooper Malbeuf testified at her deposition that, just before entering the intersection where the accident occurred, she looked up from the computer and saw the stop sign about one second prior to entering the intersection (Grue Affirmation, Ex. E, pp. 53-55). She further stated that she "attempted to hit the brake" and turned the wheel to the right prior to the collision (id., p. 60). According to the State Police Collision Reconstruction Findings Report, the Trooper's vehicle was traveling at 50 mph 0.5 seconds prior to the accident, the brakes were not engaged but, at impact, the vehicle's brakes were engaged and the Trooper's vehicle then was traveling at 49 mph (Grue Affirmation, Ex. L, p. 9). Thus, in the Court's view, there is a triable question of fact as to whether Trooper Malbeuf's actions constitute distracted driving and a failure to keep a proper lookout, and, thus, are not exempted from the rules of the road by VTL § 1104(b) (see Kabir v County of Monroe, 16 NY3d 217, 222, 230 [including the Court's analysis of Szczerbiak v Pilat (90 NY2d 553 [1997] [2011])]). Moreover, assuming such conduct is exempted by VTL § 1104(b), the Court finds a further triable question of fact as to whether Trooper Malbeuf complied with VTL § 1104(b)(2) by slowing down sufficiently at the stop sign, the answer to which will determine whether her actions are governed by the reckless disregard standard of VTL § 1104(e), or the lesser standard of ordinary negligence (see Mouring v City of New York, 112 AD3d 588, 590 [2d Dept 2013]).
Assuming, arguendo, that the Trooper complied with VTL §1104(b)(2), and further that the reckless disregard standard applies (Saarinen v Kerr, 84 NY2d 494, 497 [1994]; Muniz v City of Schenectady, 38 AD3d 989, 990-991[3rd Dept 2007]; O'Banner v County of Sullivan, supra; VTL §1104 [e]), the Court finds that Claimant's motion for summary judgment still would be denied as "[t]he 'reckless disregard' standard requires a showing 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' " (Green v Covington, 299 AD2d 636, 637-638 [3rd Dept 2002], quoting Saarinen v Kerr, supra at 501, quoting Prosser and Keaton, Torts § 34, at 213 [5th ed]; see also Szczerbiak v Pilat, supra at 557). Here, Claimant has failed to make such a showing.
The Court notes that "[w]hile the nature of the underlying police call or the officer's perception of its urgency is irrelevant for purposes of ascertaining whether the officer was engaged in an emergency operation [within the meaning of the statute], 'the nature of the call nevertheless is relevant in determining whether a responding officer's conduct was in reckless disregard for the safety of others' " (Muniz v City of Schenectady, supra at 991, quoting O'Banner v County of Sullivan, supra at 952, quoting Allen v Town of Amherst, 8 AD3d 996, 997 [4th Dept 2004]). Here, Trooper Malbeuf testified at her deposition that she did not consider this call to be an emergency call and that there was no need for her to "expedite" her response so that she could drive at a normal pace to the interview (Grue Affirmation, Ex. E, p. 40). She did not testify that she activated her emergency lights or siren, however, while traveling at about 50 mph, she looked down at the car's computer and was typing in the address of the residence to which she was heading, to get directions. Under these circumstances, triable questions of fact remain regarding whether Trooper Malbeuf's actions demonstrate reckless disregard for a known or obvious risk that was so great as to make it highly probable that a collision would occur, and conscious indifference on the part of the Trooper as to the outcome (Muniz v City of Schenectady, supra at 991; O'Banner v County of Sullivan, supra at 952; Lupole v Romano, 307 AD2d 697, 698 [3d Dept 2003]).
Accordingly, the portion of Claimant's Motion for summary judgment pursuant to CPLR 3212, on the issue of liability, is denied.
The Court will now address the portion of Claimant's Motion regarding whether she sustained a serious injury pursuant to Insurance Law § 5102(d). The statute defines "serious injury" as:
[A] personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Claimant submitted the Affidavit of Adam Shafritz, M.D., a medical doctor licensed to practice medicine in Vermont, specializing in orthopedic surgery (attached to Grue Affirmation as Ex. C [hereinafter, "Shafritz Affidavit"]). Dr. Shafritz avers that he became involved in the medical care of Claimant on April 26, 2016 when Dr. Craig Barlett consulted with him to review films of Cathy Ashlaw's left forearm. At that time, he believed he should wait about six months to determine whether Claimant would develop a left radial ulnar synostosis, and to pursue aggressive physical therapy with the hope of obtaining more favorable range of motion of her left forearm (id., ¶ 5). He states that he first consulted with Claimant on August 5, 2016, and, further, that his review of her records and films showed that she had a segmental ulna fracture, a Monteggia Fracture (a fracture of the proximal ulna with dislocation of the radial head), a radial neck fracture of the left forearm, and that she had no forearm rotation with reasonable range of motion of the elbow (id., ¶ 6). On October 18, 2016, Dr. Shafritz and Kristin Roensch, M.D., performed surgery on Claimant's left forearm to correct the damage caused as a result of the automobile collision of March 2, 2016 (id., ¶ 10). He further avers that his review of the records and the x-rays that were generated at the University of Vermont Medical Center reveal that Claimant experienced:
•Three column T11 compression fracture
•Nondisplaced fracture of clavicle
•Comminuted fracture at the base of 1st metatarsal of left foot with displacement of the plantar lateral fragment.
•Displaced fracture of the proximal end of the right humerus.
•Monteggia fracture of the left ulna and segmental ulnar fracture.
(id., ¶ 11).
Dr. Shafritz opines, to a reasonable degree of medical certainty, that Claimant sustained fractures of each of the bones mentioned above due to traumatic injuries sustained in the automobile collision of March 2, 2016 (Shafritz Affidavit, ¶ 12).
Defendant has not submitted any medical records or an affidavit from a medical doctor to controvert Claimant's assertion that she sustained a serious injury pursuant to Insurance Law § 5102(d). Therefore, the Court concludes, based upon the record submitted, that Claimant has established that she suffered a serious injury in the March 2, 2016 automobile accident with Trooper Malbeuf's police vehicle and the portion of the Motion for summary judgment on the issue that Claimant suffered a serious injury pursuant to Insurance Law § 5102(d) is granted.
The Court now turns to that portion of Claimant's Motion that seeks to strike Defendant's Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Affirmative Defenses raised in its Answer. A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The Third Affirmative Defense asserts that the State is entitled to immunity on the basis that the State's acts or omissions complained of in the Claim were undertaken as part of its governmental function, that Defendant owed no special duty to Claimant, and/or Defendant's alleged acts or omissions were the result of an exercise of discretion. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The Fourth Affirmative Defense asserts that Claimant's damages were caused by her own culpable conduct. If proved, Claimant's culpable conduct would negate, or at least limit, Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The Fifth Affirmative Defense asserts that Claimant has failed to mitigate her damages. If proved, such failure might negate, or at least limit Claimant's damages. Accordingly, this defense must stand pending a factual determination of the issue.
The Sixth Affirmative Defense asserts that Claimant's injuries were the result of an independent, superseding and intervening cause over which Defendant had no control. Again, if proved, such causes would negate, or at least limit, Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The Seventh Affirmative Defense asserts that Claimant failed to use an available seat belt or safety harness at the time of the accident. The New York State Police Collision Reconstruction Findings Report states that there is an indication of seat belt usage by Claimant at the time of the collision (Grue Affirmation, Ex. L, p. 6). Defendant has not submitted any records or affidavits to controvert the indications contained in the report. Accordingly, the Court determines that Claimant has met her burden of establishing that this defense is without merit as a matter of law.
The Ninth Affirmative Defense asserts that the incident was spontaneous, unavoidable, and created by an emergency situation to which the State's employee properly responded. Again, if proved, such defense might negate the State's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The Tenth Affirmative Defense raises the issue of the exemption from certain rules of the road pursuant to VTL § 1104(b) and whether the reckless disregard standard pursuant to VTL § 1104(e) is applicable to this situation. As set forth above, the Court finds that questions of fact exist regarding this issue, and the defense must stand pending a factual determination of the issue.
The Eleventh Affirmative Defense asserts that, pursuant to General Obligations Law § 15-108, Defendant's liability should be limited in the event some form of settlement or release was provided to another party. Again, if proved, such defense might negate, or at least limit, the State's liability. Accordingly, this defense must stand pending a factual determination of the issue.
Therefore, in accordance with the foregoing, Claimants' Motion: (1) for summary judgment as to liability is denied; (2) for summary judgment on the issue that Claimant suffered a serious injury pursuant to Insurance Law § 5102(d) is granted; and (3) to dismiss the affirmative defenses raised in Defendant's Answer is denied in part and granted as to the Seventh Affirmative Defense.
February 5, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read on Claimants' Motion: Papers Numbered Notice of Motion, Affirmation, Exhibits Attached & Memorandum of Law 1 Affirmation in Opposition & Exhibits Attached 2 Reply Affirmation 3 Filed Papers: Claim, Answer