Opinion
2016/10422
02-13-2020
Ryan J. MCELHINNEY, Plaintiff, v. Timothy W. FITZPATRICK, Individually and in his Capacity as a Monroe County Sheriff's Deputy, Defendant.
For the Plaintiff: ROTHENBERG LAW, By: David Rothenberg, Esq., 45 Exchange Street, Suite 800, Rochester, New York 14614, CERULLI MASSARE & LEMBKE, By: Matthew R. Lembke, Esq., 45 Exchange Street Suite 925, Rochester, NY 14614 For the Defendant: MONROE COUNTY DEPARTMENT OF LAW, By: Adam M. Clark, Esq., 39 W. Main Street Room 307, Rochester, NY 14614
For the Plaintiff: ROTHENBERG LAW, By: David Rothenberg, Esq., 45 Exchange Street, Suite 800, Rochester, New York 14614, CERULLI MASSARE & LEMBKE, By: Matthew R. Lembke, Esq., 45 Exchange Street Suite 925, Rochester, NY 14614
For the Defendant: MONROE COUNTY DEPARTMENT OF LAW, By: Adam M. Clark, Esq., 39 W. Main Street Room 307, Rochester, NY 14614
Christopher S. Ciaccio, J.
This action arises out of a motor vehicle accident that occurred on January 13, 2016. Plaintiff alleges that he pulled out of his driveway onto Route 441 in the Town of Penfield when he was struck by a Monroe County Sheriff's vehicle, operated by the defendant, a Monroe County sheriff's deputy, travelling at a high rate of speed without lights or sirens.
Defendant now moves for summary judgment dismissing the action, arguing that he was responding to an emergency call at the time of the accident and that as a matter of law his actions were not reckless.
The motion is denied, for the reasons below.
Many if not most of the facts are contested, however, the parties agree on this much: prior to the accident the defendant had received a 911 dispatch regarding a possibly "suicidal intoxicated driver" who lived off of Baird Road in the Town of Penfield, and thus was engaged in an "emergency operation" pursuant to Vehicle and Traffic Law § 114-b. Not finding anyone home at the address, he then received notification that the suspect was seen in the area of Route 250 and Route 441, east of Baird Road, heading toward what is called Penn Fair Plaza.
The defendant pulled back onto Baird Road, proceeded north, stopped at its intersection with Route 441, and when the light turned green, turned right — eastbound - onto Route 441, at a point where the speed limit is 35 miles per hour. He accelerated without activating his lights and sirens, and as he proceeded eastbound, a pickup truck pulled out in front him from a driveway, and defendant struck it in a right-angle crash.
In support of its motion defendant submitted selected portions of the deposition testimony of the following persons: defendant; the plaintiff; a Lieutenant Scott Alberti, of the Monroe County Sheriff's Department; and Investigator Greg Wildman, also with the MCSO.
In his deposition testimony the defendant could not recall his speed at the time of the accident, admitting that "I didn't look at my speed." He never saw the plaintiff's vehicle before the collision. Although he was familiar with the roadway and knew that there were driveways for residences on both sides of Route 441, he saw no vehicles in driveways as he proceeded east on Route 441, because as he testified "my attention was directly in front of my vehicle out the windshield."
He did not engage his emergency lights or sirens, because he was not engaged in an "emergency response," but only an "urgent response." He also testified that there were other reasons he did not engage his lights and sirens, such as that motorists sometimes react in hazardous ways to the lights and sound, and that the glare from the lights on the snow or wet road can make visibility worse.
He acknowledged that his lights and sirens were not activated. Lieutenant Alberti testified that "under the circumstances existing there, that he should have had his lights and sirens on, in my opinion."
It is well settled that "[t]he proponent on a summary judgment motion bears the initial burden of establishing entitlement to judgment as a matter of law by submitting evidence sufficient to eliminate any material issues of fact" ( Oddo v. City of Buffalo , 159 AD3d 1519, 1520 [4th Dept 2018] ; Rice v. City of Buffalo , 145 AD3d 1503, 1504—1505 [4th Dept. 2016] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ).
"Once [that] showing has been made ..., the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Kwitek v. Seier , 105 AD3d 1419, 1421-22 [4th Dept 2013] [internal quotations and citations omitted] ).
Here, defendant has not established his entitlement of judgment as a matter of law.
It is not disputed that the defendant was engaged in an emergency call, accordingly the standard of liability is "reckless disregard" for the safety of others ( Vehicle and Traffic Law § 1104[e] ; Oddo v. City of Buffalo at 1520; Connelly v. City of Syracuse , 103 AD3d 1242 [4th Dept 2013] ).
Since excessive speed has been alleged as a component of the defendant's reckless operation of his motor vehicle, it is incumbent on the defendant to state that his speed, whatever it was, did not rise to the level of "reckless disregard for the safety of others" ( Frezzell v. City of New York , 24 NY3d 213, 217 [2014]. Defendant must also come forward with some evidence to indicate that his driving cannot be characterized as a "momentary lapse of judgment" ( Dodds v. Town of Humphrey , 117 AD3d 1428 [4th Dept 2014] ).
However, when asked to "Describe your speed from the time you began your turn from Baird Road onto 441 until the time of the collision," he replied, "I don't recall what my speed was," other than that he was "increasing" his speed during the period of time from when he turned onto 441 until the time of the accident.
While it is true that speed in excess of the posted limit alone "cannot constitute a predicate for liability (inasmuch as such conduct) is expressly privileged under Vehicle and Traffic Law § 1104(b)(3)" ( Saarinen v. Kerr , 84 NY2d 494, 503 [1994] ), here the defendant, not able to state whether he was going 120 or 20 miles per hour, or somewhere in between, in a residential area where the speed posted speed limit is 35 mph, cannot establish as a matter of law that he was not acting in reckless disregard of the safety of other motorists (see Nikolov v. Town of Cheektowaga , 96 AD3d 1372, 1373 [4th Dept 2012] ). Nor, if he cannot recall his speed over what was a sustained stretch of the roadway, can defendant establish that his actions constituted a "momentary lapse."
Even if the defendant was able to recall his speed, and assuming for the sake of argument that he believes that it was close to the speed limit, the plaintiff has come forward with sufficient evidence to create a material issue of fact and thereby defeat the motion.
He has submitted an affidavit from an engineer who avers that based on data recovered from the vehicle's "black box," the defendant was travelling at 78 miles per hour at the time of impact, had travelled for at least five seconds between 72 and 78 mph, without lights or sirens activated in violation of his department regulations (see Ruiz v. Cope , 119 Ad3d 1333, 1334 [4th Dept 2014] ), in a residential area where the speed limit was 35 mph.
Excessive speed has been held to be evidence of reckless disregard sufficient to defeat a motion for summary judgment, where there is additional evidence that under the circumstances the law enforcement officer "endanger(ed) life or property" ( Vehicle and Traffic Law § 1104[b][3]see Oddo v. City of Buffalo at 1522).
While the testimony of the defendant and a witness established that only two or three other vehicles were in the vicinity, plaintiff has put forth sufficient proof to indicate that Route 441 is a "heavily-travelled" and "congested" roadway, especially at the "rush hour," and that numerous residences front on Route 441, with driveways that exit out onto the road.
Thus, the evidence is sufficient to establish a material issue of fact as to whether the defendant displayed a "reckless disregard" for the safety of others.
In addition to arguing that his conduct did not rise to the level of "reckless disregard," Defendant also argues that the plaintiff's conduct was the "sole proximate cause" of the accident, i.e., that "(b)ut for the Plaintiff's negligence, this accident would not have occurred," and he cites to Ayers v. O'Brien , 19 Misc 3d 449 (Sup. Ct Broome Cnty 2008).
It is not clear what bearing the defendant thinks Ayers has on the instant case, since in Ayers the police officer was the plaintiff seeking to dismiss the affirmative defense of comparative negligence interposed by the defendant with whom he had collided. The trial court held that the plaintiff's conduct would be judged by the "reckless disregard" standard, and thus struck the defense. From that plaintiff extrapolates an argument that in the instant matter plaintiff's complaint should be dismissed, in that the only "proximate cause" of the accident was the plaintiff's own conduct.
First, the holding of the trial court in Ayers was overruled by the Court of Appeals ( Ayers v. O'Brien , 13 NY3d 456 [2009] ). A law enforcement officer cannot rely on " Vehicle and Traffic Law § 1104(e). as a sword to ward off a comparative fault defense" ( Ayers v. O'Brien , 13 NY3d 456, 459 [2009] ).
Second, as the defendant is unable to recall how fast he was going, he fails to establish entitlement to judgment on the issue of causation as a matter of law. Even if he had, the plaintiff's engineer's report, which gives the defendant's speed as 78 mph in a 35 mph zone at rush hour, and under conditions, as acknowledged by the defendant, where the roadway was wet at dusk and the defendant had not activated his lights and sirens, raises at least a question of fact as to whether the plaintiff was able to judge the defendant's speed before pulling out onto Route 441.
Finally, as New York is a comparative negligence state, which vehicle was at fault and in what percentage "is a fact-specific inquiry. focused on the precautionary measures taken by (the officer) to avoid causing harm to the general public weighed against his duty to respond to an emergency situation" ( Frezzell v. City of New York , 24 NY3d 213, 217-18 [2014], citing Szczerbiak v. Pilat, 90 NY2d 553, 557 [1997] ; Campbell v. City of Elmira, 84 NY2d 505, 512 [1994] ; Saarinen, 84 NY2d at 503 ).
Accordingly, the motion is DENIED.
SO ORDERED