Opinion
# 2017-053-548 Claim No. 119498 Motion No. M-90703
08-31-2017
FRANCIS DESTINO v. THE STATE OF NEW YORK
LIPSITZ GREEN SCIME CAMBRIA, LLP BY: Gregory P. Krull, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
The State's motion for summary judgment alleging that NYS Trooper did not act with reckless disregard as set forth in Vehicle & Traffic Law § 1104 as a matter of law is denied as numerous questions of fact exist.
Case information
| UID: | 2017-053-548 |
| Claimant(s): | FRANCIS DESTINO |
| Claimant short name: | DESTINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only proper defendant |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119498 |
| Motion number(s): | M-90703 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA, LLP BY: Gregory P. Krull, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 31, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim arises from a motor vehicle accident that occurred on November 13, 2010 when a New York State Police vehicle operated by New York State Trooper Brian M. Pazderski (Trooper Pazderski) collided with a motor vehicle operated by claimant Francis Destino. The claim was commenced on February 11, 2011 and alleges that the defendant failed to stop or slow down at a stop sign at the intersection of State Route 93 (Route 93) and Burch Road in the Town of Wilson, New York. The answer filed by the defendant on May 17, 2011 denied the allegations in the claim. In the claimant's verified bill of particulars it is alleged that Trooper Pazderski operated his state vehicle at a high rate of speed through the aforementioned intersection in a dense, heavy fog with zero visibility, and without regard for other vehicles lawfully present on the roadway. It is further alleged that Trooper Pazderski failed to stop at a stop sign at the intersection and did not engage his siren to warn other vehicles of his presence.
The State now brings a motion for summary judgment pursuant to CPLR Rule 3212 alleging that the standard of care to be applied is whether Trooper Pazderski acted with reckless disregard for the safety of others as set forth in Vehicle & Traffic Law § 1104 (VTL 1104), and that Trooper Pazderski's alleged acts do not rise to this level as a matter of law. In opposing this motion, the claimant does not dispute that VTL 1104 applies to the facts of this case or that Trooper Pazderski was operating an emergency vehicle in an emergency operation at the time of the incident, however, claimant contends that numerous questions of fact exist by which it could be concluded that Trooper Pazderski operated his vehicle with reckless disregard for the safety of others. FACTUAL BACKGROUND
The intersection where the incident occurred at Route 93 and Burch Road is a "T" intersection with Route 93 running east to west and Burch Road serving as the base of the "T" intersection and running north to south. Trooper Pazderski testified at his deposition that while working his shift on November 13, 2010, he received a call to back up the Niagara County Sheriff's Department with a domestic incident at 3950 New Road. He was told that the husband was intoxicated and fighting, that the wife had left the house and was on the front lawn to place the call, and that the husband had firearms on the kitchen table.
Exhibit F to Affidavit in Support of Summary Judgment of Assistant Attorney General Michael T. Feeley, Esq.
Trooper Pazderski was operating a 2006 Chevy Tahoe, marked blue and gold with an emergency light bar. He entered 3950 New Road into a Garmin navigation device and proceeded northbound on Burch Road with his emergency lights on but no siren. He testified that he was familiar with the intersection of Burch Road and Route 93 and that there was a stop sign for vehicles on Burch Road at this intersection. As Trooper Pazderski approached the intersection, he testified that he was traveling between 70 and 75 miles per hour when he first saw a thick fog bank ahead. He was able to observe the fog for two to three seconds and estimated that it first appeared about 100 to 125 feet prior to the intersection. He testified that as he entered the fog bank, he reduced his speed to 50 to 60 miles per hour. He did not turn on his siren prior to entering the fog and explained that there was no particular reason why he didn't do so, admitting that the siren "possibly" would have provided notice of his presence to other vehicles not able to see him.
As Trooper Pazderski entered the fog, which he described as "drastic and sudden", he slowed his vehicle further and the Garmin device directed him to make a left turn. Trooper Pazderski did not stop at the stop sign and proceeded to make a left turn traveling west onto Route 93. He testified that he did not see any cars as he began to enter Route 93, but then observed headlights of vehicles coming first from his right and then claimant's vehicle from his left. He testified that when he saw the approaching vehicles, he stopped in the eastbound lane near the centerline of Route 93. Although he claimed to stop suddenly, there were no skid marks left from Trooper Pazderski's vehicle. When asked at his deposition why he didn't stop at the stop sign and make certain that the intersection was clear before entering Route 93, Trooper Pazderski replied that "the intersection came up quickly due to the dense fog. I didn't have that choice. It wasn't a conscious choice like, I'm gonna stop prior to this. It was sudden due to the fog." Contrary to his deposition testimony, neither the MV-104A Accident Report, Trooper Pazderski's Memorandum nor Sargeant Harmon's Investigation Report indicate that the defendant's vehicle was stopped prior to the collision. The MV-104A at boxes 19 and 20 lists "failure to yield right of way" and "view obstructed/limited" as apparent contributing factors that caused the collision.
Exhibit E, transcipt of the examination before trial of Trooper Pazderski at page 44.
Exhibit G to Affidavit in Support of Summary Judgment of Assistant Attorney General Michael T. Feeley, Esq.
The claimant testified at his deposition that as he approached the intersection, he saw red and blue colors flashing in the fog to his right on Burch Road and assumed it was an emergency vehicle. He testified that he observed Trooper Pazderski's vehicle to be traveling at a high rate, that "he was going fast." Claimant testified that he heard no siren. He testified that Trooper Pazderski's vehicle did not slow up and that the impact occurred approximately two seconds later. He also testified that while at the accident scene, Trooper Pazderski stated to claimant that he never saw the intersection and that "this one is on me."
Exhibit D, transcript of the examination before trial of Francis Destino at page 47.
Exhibit D, transcript of the examination before trial of Francis Destino at page 57-58.
In support of this motion, the defendant also submits the affidavit of Matthew J. Daley, a Technical Sergeant in the New York State Police. Sergeant Daley was not a witness to the accident and his affidavit is offered for his expert opinion. He concludes that the acts of Trooper Pazderski do not rise to the level of reckless disregard as provided in VTL 1104. The Court finds that the expert opinion of Sergeant Daley evaluating the actions of a fellow New York State Trooper is of no probative value. Furthermore, Sergeant Daley's opinion as to whether Trooper Pazderski acted with reckless disregard for the safety of others usurps the role of the Court and of the determination on the ultimate issue in this motion. DECISION
Summary judgment is a drastic remedy which should only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of such a motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Zuckerman v City of New York, supra at 562). Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion.
The Vehicle and Traffic Law provides authorized emergency vehicles a qualified privilege to disregard the ordinary rules of the road in certain circumstances. A police vehicle is defined as an authorized emergency vehicle pursuant to VTL § 101 and the operation of a police vehicle responding to a police call is recognized by the law as an emergency operation pursuant to VTL § 114-b. The claimant does not dispute that Trooper Pazderski was in an authorized emergency vehicle en route to assist the Niagara County Sheriff's Department in an emergency operation.
In accordance with VTL 1104 (b) (2), one of the qualified privileges granted by statute to the driver of an authorized emergency vehicle is that they may drive past a stop sign "but only after slowing down as may be necessary for safe operation." In addition, VTL 1104 (b) (3) provides that the driver of an authorized vehicle may also "[e]xceed the maximum speed limits so long as he does not endanger life or property." Most importantly, VTL 1104 (e) provides that these statutes and the qualified privilege that they provide to drivers of authorized emergency vehicles are to be evaluated in light of the reckless disregard standard. The statute provides that these 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."
The Court of Appeals has previously defined the conduct necessary to establish reckless disregard, stating in Saarinen v Kerr, 84 NY2d 494 (1994) that:
"[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 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 (Prosser and Keeton, Torts § 34, at 213 [5th ed.]; see, Restatement [Second] of Torts § 500)." id. at 501.
The appellate courts applying this standard have defined reckless disregard as requiring proof that the police officer intentionally did 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 (Palmer v City of Syracuse, 13 AD3d 1229 [4th Dept 2004]; see also Nurse v City of New York, 56 AD3d 442 [2d Dept 2008]; Gonyea v County of Saratoga, 23 AD3d 790 [3d Dept 2005]).
The Court of Appeals in Campbell v City of Elmira, 84 NY2d 505 (1994), examined the issue of the proof necessary in a motion for summary judgment for a court to rule as a matter of law that the defendant's conduct violated the reckless disregard standard, stating that:On the one hand, the more rigorous standard before allowing for municipal liability arising out of emergency circumstances accommodates the realities of the dangerous conditions encountered by officers in performing their municipal duties with necessary dispatch and dispensation from ordinary care. On the other hand, though, the Legislature retains and recognizes the potential for liability as a protection for the general public against disproportionate, overreactive conduct. Conduct measured against such a calibrated formulation is not always or easily resolvable as a matter of law without some appropriate fact-finding forum and process , any more than simple negligence usually is. The more rigorous statutory test before allowing liability thus retains some incentives for moderating and deescalating the already dangerous situations when emergency personnel are engaged in their valiant and important services. Thus, while the Legislature shields municipalities from simple negligence and mere errors in judgment, it also protects innocent victims and the general public by expressly not relieving emergency operators and their municipal employers of all reasonable care (see, Vehicle and Traffic Law § 1104[e] [employing reckless disregard, and not intentional harm, standard for imposing liability]; see also, Vehicle and Traffic Law § 1104[b][2] [under emergency conditions, emergency vehicle driver may proceed past red light "only after slowing down as may be necessary for safe operation"]; Vehicle and Traffic Law § 1144[b] [while emergency vehicle operator has right of way, emergency driver is not relieved of duty to drive with reasonable care for all persons using the highway] ). id. at 512-513 (emphasis added).
The Fourth Department has held on numerous occasions that whether a police officer acted with reckless disregard as defined by the Court of Appeals in Saarinen is a question of fact that requires the denial of a motion for summary judgment. In their most recent decision on this issue in Perkins v City of Buffalo, 151 AD3d 1941 (4th Dept 2017), the appellate court affirmed the holding of the lower court denying a cross-motion for summary judgment by defendant and finding a question of fact as to whether the defendant police officer's conduct constituted reckless disregard for the safety of others when in responding to an emergency call, the defendant officer drove through a red traffic signal at an intersection without emergency lights or siren. Similarly, in Connelly v City of Syracuse, 103 AD3d 1242 (4th Dept 2013), the appellate court affirmed the ruling of the lower court denying the defendant summary judgment where the defendant police officer entered a limited-visibility intersection controlled by a four-way stop sign shortly before midnight without slowing, stopping, or activating his emergency lights or sirens. Finally, in Ham v City of Syracuse, 37 AD3d 1050 (4th Dept 2007), the appellate court affirmed the holding of the lower court denying a motion for summary judgment, finding that a question of fact existed as to whether the defendant officer's conduct amounted to reckless disregard for the safety of others where the officer entered a blind intersection against a red traffic light with extremely limited sight lines for traffic and neither his emergency lights or sirens were activated.
The defendant's reliance upon the Fourth Department's decision in Herod v Mele, 62 AD3d 1269 (4th Dept 2009) is misplaced in that the facts are distinguishable from those in this claim. In Herod, it is significant that the record established that the police officer had the right-of-way at the intersection and there was no evidence of any traffic at or near that intersection other than plaintiff's vehicle. In this case, Trooper Pazderski did not have the right-of-way entering Route 93 and it is undisputed that he became aware of traffic on Route 93 traveling in both directions. Another significant difference is the fact that Trooper Pazderski was driving through dense fog with extremely limited visibility and testified that the intersection appeared suddenly before he entered Route 93.
In the present case, we also have conflicting testimony as to whether Trooper Pazderski's vehicle was traveling too fast under the circumstances as he approached the intersection, whether he slowed sufficiently and as "necessary for safe operation," and whether he could or should have observed the claimant's vehicle and the vehicle traveling in the opposite direction on Route 93 prior to driving past the stop sign to execute a left turn onto Route 93. In Trooper Pazderski's own words, he indicated that although familiar with the intersection "the intersection came up quickly due to the dense fog. I didn't have that choice. It wasn't a conscious choice like, I'm gonna stop prior to this. It was sudden due to the fog." There is also conflicting testimony as to whether Trooper Pazderski was stopped prior to impact or whether he was still in the process of continuing his left turn onto Route 93 when the collision occurred. Claimant testified that he not only braked when he saw the police vehicle but swerved to his right. As a result, numerous questions of fact exist as to whether Trooper Pazderski's acts violated VTL 1104 (e) and were in reckless disregard for the safety of others. Claimant also alleges that Trooper Pazderski should not have entered the intersection without his siren on given the dense fog and limited sight lines. Although VTL 1104 (c) does not mandate that a police officer operate his siren at all times, given the conditions with dense fog and extreme limits to the sight lines at the subject intersection, the Court finds that a question of fact also exists as to whether Trooper Pazderski's failure to operate his siren to forewarn vehicles on Route 93 of his presence is evidence of reckless disregard for the safety of others.
In deciding upon a motion for summary judgment, the court is to view the evidence in the light most favorable to the claimant, and afford him every favorable inference to be drawn from that evidence (Szczerbiak, supra at 556). As a matter of law, it cannot be concluded that under no circumstance could these facts be determined to rise to the level of reckless disregard in accordance with VTL 1104 (e). Where, as here, conflicting testimony exists, it is ultimately for the finder of fact at trial to evaluate the testimony and the demeanor of the parties to determine the ultimate issue of whether Trooper Pazderski's acts were in reckless disregard for the safety of others. CONCLUSION
It is therefore the finding of the Court that the defendant has failed to meet its burden of proof and that claimant has raised triable issues of fact as to whether Trooper Pazderski's acts were in reckless disregard for the safety of others sufficient to defeat the defendant's motion to dismiss pursuant to CPLR Rule 3212, and having reviewed the submissions of the parties, it is hereby ORDERED that motion no. M-90703 be denied.
August 31, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The Court has read and considered the following: 1. Notice of motion of Assistant Attorney General Michael T. Feeley, Esq., dated June 29, 2017; 2. Affirmation in opposition of Gregory P. Krull, Esq., dated July 18, 2017; and 3. Reply affidavit of Assistant Attorney General Michael T. Feeley, Esq., dated July 26, 2017.