Summary
In Mexico Leasing, Murphy appears to have been cited for the proposition that even where the technical rule of law would lead to a denial of succession, succession should still be granted where the eviction of a family member of the tenant, who both resided with the tenant for a long period and has lived in the premises for a long period would otherwise be the result.
Summary of this case from 3750 Broadway Realty Grp., LLC v. GarciaOpinion
0602404/12
10-02-2015
Angela Marie Brown, as Administratrix of the Estate of CHAD LAMARR WHETHERS, Deceased, JANIRRA M. WHETHERS, an infant under the age of four (4) years by her Mother and Natural Guardian, ANGELA MARIE BROWN, Plaintiffs, v. Incorporated Village of Freeport, WAYNE GIGLIO, PHASE 365 INC., RAYMOND GRAHAM, LARRY MCCLOUD and LLOYD J.B. WILLIAMS, Defendants.
Edelman, Krasin & Jaye, PLLC Attorneys for Plaintiffs 7001 Broad Hollow Road Westbury, NY 11590 (516) 742-9200 Harris Beach, PLLC Attorneys for Defendant, Giglio 333 Earle Ovington Blvd. Uniondale, NY 11553 (516) 880-8484 D'Amato & Lynch, LLP Attorneys for Defendant, Freeport Two World Financial Center 225 Liberty Street New York, NY 10281 (212) 269-0927
Edelman, Krasin & Jaye, PLLC
Attorneys for Plaintiffs
7001 Broad Hollow Road
Westbury, NY 11590
(516) 742-9200
Harris Beach, PLLC
Attorneys for Defendant, Giglio
333 Earle Ovington Blvd.
Uniondale, NY 11553
(516) 880-8484
D'Amato & Lynch, LLP
Attorneys for Defendant, Freeport
Two World Financial Center
225 Liberty Street
New York, NY 10281 (212) 269-0927
Randy Sue Marber, J.
Notice of Motion...................................x
Memorandum of Law............................x
Amended Notice of Motion..................x
Memorandum of Law............................x
Affirmation in Opposition.....................x
Reply Affirmation..................................x
Reply Memorandum of Law..................x
Reply Affirmation..................................x
Reply Memorandum of Law..................x
Upon the foregoing papers, the Motion (Mot. Seq. 02) by the Defendant, Wayne Giglio ("Giglio"), seeking an order pursuant to CPLR § 3212 granting him summary judgment dismissing the Verified Complaint against him and the Motion (Mot. Seq. 03) by the Defendant, the Incorporated Village of Freeport ("Village") seeking an order pursuant to CPLR § 3212 granting it summary judgment dismissing the complaint against it, are determined as provided herein.
The Plaintiff in this action seeks to recover for the wrongful death of Chad Lamarr Whethers. He was killed on June 18, 2011 in an automobile accident with an automobile being driven by the Defendant, Lloyd J.B. Williams at approximately 3:00 a.m. in the Village of Freeport. Immediately prior to the accident, Village Police Officer, the Defendant, Giglio, had been following and/or pursuing the Williams' vehicle in his unmarked Village police car. The Williams' vehicle was transporting a man who had just been shot near the Defendant, Phase 365 Inc.'s club. The Plaintiff seeks to hold Officer Giglio and the Village responsible for Mr. Whethers' demise based upon Giglio's allegedly negligent operation of his police vehicle which they claim proximately caused Mr. Williams to drive erratically and led to the accident. The Defendants, Giglio and the Village seek dismissal of the complaint.
The Plaintiff was awarded a default judgment against the Defendant, Lloyd J.B. Williams pursuant to the Order of this Court (Marber, J.) dated December 4, 2013.
The Plaintiff was also awarded a default judgment against the Defendant, Phase 365 Inc. pursuant to the Order of this Court (Marber, J.) dated December 4, 2013.
The facts pertinent to the determination of this motion are as follows:
Officer Giglio testified at his Examination Before Trial (EBT) that on the evening/morning in question, he was patrolling in an unmarked car working a special burglary detail. He was stopped in his unmarked car near Phase 365 when he heard a gunshot. A man then attempted to get into the rear of his vehicle and banged on the rear window of his vehicle. Officer Giglio put down the rear window and asked him if he had been shot. He responded that he had. The man then ran to a nearby stopped car and got into it and it sped off. Officer Giglio testified at his EBT that he thought the man had fled from his car because he realized he was a police officer. Officer Giglio then followed that car with his emergency lights activated believing that it was traveling to a hospital to get aid for the man who had been shot. Officer Giglio turned his siren on when he observed the car run its first stop sign, although he did not consider it a "pursuit." The car was traveling at a high rate of speed and ignoring traffic signals including stop signs and a traffic light. When the car reached Merrick Road, Officer Giglio concluded that it was, in fact, not going to the nearest hospital. Shortly after it turned onto Pine Street, Officer Giglio lost sight of the vehicle. At his EBT, Officer Giglio recalled turning off his emergency lights and sirens as he continued down Pine Street looking at each intersection for a sign of the car. At Mr. Williams' criminal trial, a recording that was made by a nearby business indicated that Officer Giglio's lights were on when he reached the accident site. Officer Giglio accordingly recalled that he may have only turned off his siren. In support of his motion, Officer Giglio now recalls only turning off his siren while traveling along Pine Street but not his emergency lights. Officer Giglio eventually came upon the subject accident scene at the intersection of Pine Street and Guy Lombardo Avenue. He testified that when he discovered the accident, he turned his emergency lights back on. He estimated he arrived at the accident scene a little over a minute past the time he lost sight of Mr. Williams' car. Finally, Officer Giglio testified at his EBT that he slowed at every intersection to check for traffic and that he generally proceeded at a slower pace than Mr. Williams out of concern for public safety. In fact, that is why and how he ultimately lost sight of Mr. Williams' vehicle.
At his criminal trial, Mr. Williams testified that on the morning in question, he was trying to get his friend to a hospital. He testified that he was not aware of an officer following him. He was not aware of lights or sirens and he never believed he was being pursued. He specifically testified "how am I fleeing the officer when I don't even know he is there?"
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). A party seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 [1993]). If the movant makes a prima facie showing, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra at 324). "[T]o defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact' " (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067—1068 [1979], quoting CPLR § 3212, subd. [b]). "On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ).
"Vehicle and Traffic Law § 1104 ("VTL") grants the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation. Those privileges include passing through red lights and stop signs, exceeding the speed limit and disregarding regulations governing the direction of movement or turning in specified directions" (Frezzell v. City of New York, 24 NY3d 213, 217 [2014], citing VTL § 1104 [a], [b]). An unmarked police car qualifies for treatment under VTL 1104. Flynn v. Samuca Taxi, 123 AD3d 501 (1st Dept. 2014). Nevertheless, "drivers of emergency vehicles are not relieved of their duty to drive with due regard for the safety of all persons' and section 1104 does not protect the driver from the consequences of his reckless disregard for the safety of others' " ( Frezzell v. City of New York, supra at 217, quoting VTL § 1104 [e]; see also, Gonzalez v. Zavala, 88 AD3d 946 [2d Dept. 2011]). "This reckless disregard' standard demands more than a showing of a lack of "due care under the circumstances" — the showing typically associated with ordinary negligence claims' " ( Frezzell v. City of New York, supra at 217 quoting Saarinen v. Kerr, 84 NY2d 494 [1994]). "[F]or liability to be predicated upon a violation of VTL § 1104, there must be 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 (quotations omitted)" ( Frezzell v. City of New York, supra at 217, quoting Saarinen v. Kerr, quoting Prosser & Keeton, Torts § 34 at 213 [5th ed]; see also, Nurse v. City of New York, 56 AD3d 442 [2d Dept. 2008]). In addition, reckless driving of a car that actually causes a collision constitutes the intervening cause of an accident even when the vehicle was being pursued by a police officer. Nurse v. City of New York, supra, citing Jessop v. City of Niagara Falls, 247 AD2d 902, 903 [1998]; Dibble v. Town of Rotterdam, 234 AD2d 733, 736 [1996]; Paige v. Rocco, 214 AD2d 662, 663 [1995]).
The evidence here unequivocally demonstrates that Police Officer Giglio is entitled to the protection afforded by the VTL and there is not a scintilla of evidence that he operated his vehicle with reckless disregard for others. According to Mr. Williams, he did not even know he was being followed by Officer Giglio let alone pursued, so the manner in which he operated his vehicle was totally unrelated to Officer Giglio's conduct. In addition, Officer Giglio's operation of his vehicle was not the proximate cause of the accident; Mr. William's operation of his vehicle was. The Village and Officer Giglio have established their entitlement to summary judgment dismissing the complaint against them thereby shifting the burden to the Plaintiff to establish the existence of a material issue of fact.The Plaintiff has not met her burden. The arguments she advances are not only unsupported by the facts but are actually refuted by the facts of this case. Officer Giglio did not cause Mr. Williams to drive erratically by "keeping pace" with his vehicle. There is no question that he lost sight of the Williams' vehicle over a minute before the crash. Similarly, Mr. Williams testified that he was not even aware that an officer was following him. Therefore, Officer Gigilio's conduct could not have caused Mr. Williams' erratic driving. That Officer Giglio at times exceeded the speed limit while following the Williams vehicle, and for brief periods of time was only one to two car lengths behind him when Mr. Williams drastically slowed down, have not been shown to have been a cause of the accident and would, in any event, be protected by the privileges afforded Officer Giglio by VTL § 1104.
The Plaintiff alleges that Officer Giglio's actions were violative of Incorporated Village of Freeport Police Department General Order 15. In fact, they were not. Officer Giglio's intent in following the Williams vehicle was not in the nature of a pursuit. Therefore, the absence of a reasonable suspicion of a crime is irrelevant. General Order 15 requires that a motorist knows a police officer wants him or her to pull over and stop and nevertheless deliberately takes action in an attempt to evade the officer. There is no evidence that that that happened here. Specifically, Mr. Williams never believed he was being followed or pursued. In addition, Officer Giglio never sought to overtake the Williams vehicle, further rendering General Order 15 inapplicable. Furthermore, while General Order 15 requires unmarked cars to attempt to remain unrecognized and to proceed with back up except under extreme circumstances, Mr. Williams never became aware of Officer Giglio's presence. Therefore, any violation of that rule played no part here.
In any event, Officer Giglio's testimony clearly establishes that he, at all times, comported with General Order 15. Mr. Williams' illegal driving, as well as his veering off the path toward the hospital with a gun shot victim in his car, justified a pursuit under General Order 15. Officer Giglio constantly and realistically evaluated the risks and when the risks outweighed the potential benefit of following or pursuing the Williams' vehicle, his pursuit was terminated.
The Plaintiff also maintains that if Officer Giglio was not pursuing the Williams' vehicle, he cannot rely on VTL § 1104 to justify his conduct which she alleges caused the accident. Vehicle and Traffic Law § 114-b clearly defines "emergency operation" as "[t]he operation ... of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person ... or pursuing an actual or suspected violator of the law...." And, an officer's characterization of his actions does not bind a court in evaluating whether an emergency operation under VTL § 1104 was taking place. Rusho v. State of New York, 24 Misc 3d 752 (Court of Claims 2009), rvsd. on other grounds, 76 AD3d 783 (Ct of Claims 2010). The circumstances certainly indicate that Officer Giglio's pursuit of the Williams' vehicle qualified as an "emergency operation" as he was not only transporting an injured person presumably to a hospital, he broke several laws in the course of doing so.
Finally, in any event, assuming, arguendo, that the reckless standard did not apply, Officer Giglio's allegedly negligent behavior was not the proximate cause of the accident. Nurse v. City of New York, supra, citing Jessop v. City of Niagara Falls, supra; Dibble v. Town of Rotterdam, supra; Paige v. Rocco, supra.
Accordingly, it is hereby
ORDERED, that the motion (Mot. Seq. 02) by the Defendant, Wayne Giglio, seeking an Order of this Court, pursuant to CPLR § 3212 granting him summary judgment dismissing the Plaintiffs' complaint against him is GRANTED; and it is further
ORDERED, that the motion (Mot. Seq. 03) by the Defendant, Incorporated Village of Freeport, seeking an order pursuant to CPLR § 3212, granting it summary judgment dismissing the Plaintiffs' complaint against it, is GRANTED.
This decision constitutes the order of the Court.
DATED:Mineola, New York
October 2, 2015
________________________________
Hon. Randy Sue Marber, J.S.C.