Opinion
28348/2011
09-11-2017
Sara Fuchs, Plaintiff, v. City of New York and THE NEW YORK CITY POLICE DEPARTMENT, Defendants.
Attorney for Plaintiff Law Offices of Israel & Lipsky Chana Sklar Israel, Esq. 2 Perlman Drive, Suite 301 Spring Valley, NY 10977 Attorney for Respondent City of New York Zachary W. Carter Corporation Counsel of the City of New York 350 Jay Street, 8th Floor Brooklyn, NY 11201 Attention: Samantha Irene Joshua, Esq., Assistant Corporation Counsel
Attorney for Plaintiff Law Offices of Israel & Lipsky Chana Sklar Israel, Esq. 2 Perlman Drive, Suite 301 Spring Valley, NY 10977 Attorney for Respondent City of New York Zachary W. Carter Corporation Counsel of the City of New York 350 Jay Street, 8th Floor Brooklyn, NY 11201 Attention: Samantha Irene Joshua, Esq., Assistant Corporation Counsel Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers/Numbered Defendant City's Notice of Motion with Accompanying Affidavits and Exhibits 1 Plaintiff's Affirmation in Opposition with Accompanying Affidavits and Exhibits 2 Defendant City's Affirmation in Reply to Plaintiff's Opposition 3 Plaintiff's Sur-Reply in Opposition to Reply Affirmation 4
This case raises the issue of whether the City of New York (the "City") is immune from liability when a patrol officer operating a vehicle closely pursues a traffic violator at high speed and in the wrong direction without contacting the police dispatcher. For the reasons set forth below this Court finds that the City is immune.
On September 26, 2010, at around 10:30 pm, Police Officer ("P.O.") Cuenca (driver) and P.O. Flores, both members of the N.Y.C. Police Department ("NYPD"), were on patrol traveling in the eastern direction on Empire Boulevard when they observed a vehicle operated by Nashaum Arnett Holmes ("Holmes") heading west without its headlights on. Upon observing this, P.O. Cuenca made a U-turn, activated his lights and siren, and started to pursue the vehicle. After initially appearing to slow down, Holmes accelerated and then sped westbound in the eastbound lane, and P.O. Cuenca followed closely behind. P.O. Cuenca did not contact the police dispatcher prior to the pursuit. The roads were wet and it was dark. At first P.O. Cuenca was two car lengths behind Holmes' vehicle, but when Holmes reached the intersection of Empire Blvd. and Troy Ave., Cuenca was less than a car length behind. After reaching the intersection, Holmes made a left turn onto Troy Avenue, which is a one way street, in the wrong direction and collided with plaintiff Sara Fuch's ("plaintiff" or "Fuchs") vehicle, which was stopped at a red light. Plaintiff sustained injuries.
The City moves for summary judgment dismissing the complaint pursuant to CPLR § 3212 claiming that pursuant to VTL § 1104, the City is immune from liability for the actions that P.O. Cuenca took since he was exempt from certain traffic laws and did not evince "reckless disregard for the safety of others" when he pursued Holmes. VTL § 1104(a) and (b) exempts the drivers of authorized emergency vehicles from the requirements of certain traffic laws, including speed laws and regulations governing directions of movement, when they are involved in an "emergency operation" as defined by VTL §§ 114-b. This statutory qualified immunity precludes the imposition of liability except where the conduct rises to the level of recklessness (VTL § 1104(e)).
Plaintiff opposes defendant's motion on the grounds that the City failed to establish, prima facie, that the P.O. did not act in reckless disregard for the safety of others in proceeding into the intersection where the subject accident occurred, and that there are questions of fact as to whether: 1) the P.O. was engaged in an emergency operation as defined by VTL § 114-b and was afforded the privileges of VTL § 1104(b) to disobey traffic rules; 3) the P.O.'s admitted failure to abide by the provisions of the New York City Police Department Patrol Guide ("Patrol Guide") constituted reckless disregard for the safety of others; and 4) the P.O.'s pursuit was the proximate cause of the accident.
Holmes is inexplicably not a party to this action even though his vehicle hit plaintiff's vehicle and purportedly caused her injuries.
This Court finds that VTL § 1104 affords the City immunity from liability for certain actions taken by the P.O. in pursuing the suspect. Pursuant to VTL § 1104(a), the first criterion for immunity is that the driver of the authorized emergency vehicle was involved in an "emergency operation," which VTL § 114-b defines as "pursuing an actual or suspected violator of the law." Since Holmes drove his car into the lane for oncoming traffic, he was guilty of violating VTL § 1120(a), which provides that vehicles shall be driven upon the right half of the roadway. Thus, in pursuing Holmes, P.O. Cuenca was clearly involved in an "emergency operation," and meets the first criterion for VTL § 1104 immunity. Plaintiff has failed to raise a material issue of fact to rebut this.
The second criterion for immunity under VTL § 1104 is that the driver of the emergency vehicle engaged in specific conduct exempted from the rules of the road by VTL § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence. Kabir v County of Monroe, 16 NY3d 217, 220 (2011). That P.O. Cuenca exceeded the speed limit and disregarded the rules regarding direction of traffic does not render him reckless or provide an independent basis for liability, as such conduct is specifically exempted pursuant to VTL § 1104(b)(3) and (4). Turini v. County of Suffolk, 8 AD3d 260, 262 (2nd Dept. 2004); Dorsey v. City of Poughkeepsie, 275 AD2d 386, 387 (2nd Dept. 2000).
Plaintiff nevertheless contends that P.O. Cuenca engaged in non-exempted conduct. P.O. Cuenca's deposition testimony reveals that he was following at a distance of less than a car length when the Holmes' vehicle reached the intersection, and that Cuenca was "right behind" Holmes' vehicle after Holmes made the left turn in the wrong direction and collided with another vehicle. This testimony raises the issue of whether P.O. Cuenca followed Holmes too closely behind and whether such conduct is exempted by VTL § 1104 from the rules of the road. Pursuant to VTL § 1129(a), a driver of a motor vehicle may not follow another vehicle "more closely than is reasonable and prudent," depending on the speed and traffic conditions on the road.
This Court finds that although the P.O.'s close proximity to Holmes (less than a car length) at the intersection is not specifically exempted pursuant to the language of VTL § 1104, there is an implied proximity exemption pursuant to case law. Whenever a police officer observes a driver posing a threat to public safety, he has the right and duty to use whatever means are necessary, short of recklessness, to "overtake" and stop the offending driver. Saarinen v. Kerr, 84 NY2d 494, 503 (1994); Powell v. City of Mount Vernon, 228 AD2d 572 (2nd Dept. 1996); Lorber v. Town of Hamburg, 225 AD2d 1062, 1064 (4th Dept. 1996); Dibble v. Town of Rotterdam, 234 AD2d 733, 735 (3rd Dept. 1996). The common definitions of "overtake" include "to catch up with" and "to catch up with and pass by." Overtake Definition, MERRIAM—WEBSTER.COM, http://merriam-webster.com/dictionary/ overtake (last visited August 10, 2017). See e.g Singleton v. Cuthbert, 417 S.C. 555, 560 (S.C. Ct. App. 2016). The definition of "catch up with" means to "move fast enough to join (someone or something that is in front." Catch up with Definition, MERRIAM—WEBSTER.COM, https://www.merriam-webster.com/dictionary/catch%20up%20with (Last visited August 10, 2017). Since Holmes' erratic and dangerous driving posed a threat to the public safety, the P.O. had the right and duty to "overtake" him, i.e., to drive close enough to him to apprehend him. See also, Greenawalt v Village of Cambridge, 67 AD3d 1158, 1160 (3rd Dept. 2009) (Police vehicle's speed and proximity to suspected lawbreaker alone could not establish liability, especially where there was no evidence that the pursuing officer interfered with the pursued driver's ability to surrender).
The third criterion for VTL § 1104 immunity is that the authorized emergency vehicle used the prescribed audible and visual signals. VTL § 1104(c). As there is no dispute that the P.O. activated his lights and siren, plaintiff has failed to raise an issue of fact with regard to this issue. The fourth criterion for VTL § 1104 immunity is that the driver of the emergency vehicle acted with due regard for the safety of others and did not act in "reckless disregard for the safety of others." Plaintiff claims that P.O. Cuenca's failure to abide by Procedure No. 212-39 of the Patrol Guide (the "Procedure"), entitled "Vehicle Pursuits," constitutes reckless disregard. The Procedure requires that upon observing that there is a likelihood that a vehicle pursuit may be imminent, police officers must notify the radio dispatcher at the start of the pursuit, maintain contact, and notify the dispatcher if the vehicle changes direction.
The "reckless disregard" standard requires proof that the officer "intentionally committed 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." Frezzell v City of New York, 24 NY3d 213, 217 (2014); Rios v City of New York, 144 AD3d 1011, 1011-1012 (2nd Dept. 2016); Daly v. County of Westchester, 63 AD3d 988, 989 (2nd Dept. 2009). Considering the totality of circumstances, the P.O.'s failure to contact the dispatcher was not reckless. See, Turini v. County of Suffolk, 8 AD3d 260, 262 (2nd Dept. 2004) (Police officer's alleged failure to follow the general standards of care articulated in Suffolk County Police Department's procedure manual did not provide an independent basis to impose liability upon the defendants); Teitelbaum v. City of New York, 300 AD2d 649, 650 (2nd Dept. 2002) (Police officer's alleged violation of internal guidelines relating to pursuits failed to establish that his conduct was reckless).
In view of the fact that Holmes defied the police in refusing to stop and then proceeded to speed into opposing traffic, it was entirely reasonable for P.O. Cuenca to pursue Holmes right away without stopping to call the dispatcher. There is no evidence that the risk of not calling the dispatcher would increase the probability that harm would follow. Furthermore, the duration of the pursuit was very short as it only continued for a block, and there was no opportunity to consider terminating the pursuit. See, Saarinen, supra., 84 NY2d at 503-504 (Police officer's failure to call in to his headquarters until after pursuit was "hardly surprising" in view of "rapidly unfolding flow of events and the extremely short time frame in which the entire incident occurred").
The final ground for the City's motion to dismiss is that Holmes' actions were the sole proximate cause of the incident. In general, the issue of causation is resolved by the fact finder. Mercado v. Vega, 77 NY2d 918, 920 (1991); Marinescu v Port Auth. of NY & NJ, 2013 NY Slip Op 32953(U), 2013 NY Misc. LEXIS 5392 (Sup. Ct. Queens Co. 2013); Sandell v Board of Managers of Parc Vendome Condominium, 2009 NY Slip Op 30428(U), 2009 NY Misc. LEXIS 3991 (Sup. Ct. NY Co. 2009). However, where the material facts are not in dispute it is within the court's province to determine as a matter of law whether the defendant is entitled to summary judgment based on causation. See, Mfon v. County of Dutchess, 2017 U.S. Dist. LEXIS 33971, 30-31 (S.D.NY Mar. 9, 2017); Jones v Albany County Sheriff's Dept., 123 AD3d 1331, 1335 (3rd Dept. 2014); Nurse v. City of New York, 56 AD3d 442, 443 (2nd Dept. 2008).
Here, the facts are not in dispute and plaintiff has failed to allege facts that could support a finding that the conduct of P.O. Cuenca in pursuing Holmes was a proximate cause of his accident. Plaintiff's allegations of recklessness — P.O. Cuenca's and P.O. Flores alleged failure to follow the Procedure with regard to contacting the dispatcher, their decision to pursue Holmes without considering the "minor" nature of the offense, and their decision to continue to pursue him in a busy neighborhood — even if established, did not cause the incident. Holmes, in blatant disregard for the safety of others, commenced traveling at a high rate of speed in the wrong direction upon being sighted by police, and made a left turn onto Troy Avenue, which is a one way street, in the wrong direction and collided with plaintiff's vehicle. Thus, as a matter of law, this Courts finds that Holmes' operation of his vehicle, not the manner in which the police officers conducted their pursuit, was the proximate cause of the accident
Based on the above, defendants' motion for summary judgment dismissing the complaint is granted. This constitutes the Decision and Order of the Court. DATED: September 11, 2017 _____________________________________ KATHERINE A. LEVINE, J. S.C.