Opinion
67830/2017
09-04-2019
Dale PETERKIN, Plaintiff, v. The CITY OF MOUNT VERNON, Mount Vernon Police Department, Detective McCue, Detective Williams, Police Officer "John Doe" (Fictitous Name Meant to Designate Police Officer Who Casued or Permitted Injury to Plaintiff and Mauro A. Duarte, Defendants.
All parties appearing via NYSCEF.
All parties appearing via NYSCEF.
The following papers were considered on the motion of THE CITY OF MOUNT VERNON, MOUNT VERNON POLICE DEPARTMENT, DETECTIVE McCUE and DETECTIVE WILLIAMS (hereinafter collectively referred to as "defendants") [Mot. Seq. 2], made pursuant to CPLR 3212, for an order granting summary judgment for dismissal of the complaint as against DALE PETERKIN ("plaintiff"):
PAPERS
Notice of Motion, Affirmation, Memorandum of Law, Exhibits A-O
Affirmation in Opposition, Affidavits, Exhibits 1-7
Reply Affirmation
Upon review of the foregoing papers, the Court determines as follows:
FACTS
The undisputed facts establish that, during the late morning hours of January 20, 2017, McCue and Williams — detectives with the City of Mount Vernon Police Department working in the field intelligence unit — were in plain clothes and patrolling an area of Mount Vernon in an unmarked police car, with Williams driving and McCue sitting in the passenger's seat. While their vehicle was stopped at a red light on Gramatan Avenue (a two-way street) at North Street, they observed an individual operating a Chevrolet pickup truck on the wrong side of the road on Gramatan Avenue, crossing over the double yellow line and passing several cars. As a result, Williams and McCue followed the vehicle, whereupon McCue radioed police dispatch concerning the incident. During the course of the pursuit, the suspect's vehicle struck plaintiff's right passenger side of the vehicle at the intersection of 2nd Street and 12th Avenue, thereby causing plaintiff's vehicle to flip over, causing him to sustain, among other things, blunt trauma to the head and an edema in both retinas. Subsequently, it was determined that the fleeing motorist, who committed numerous moving violations during the pursuit, was Mauro A. Duarte ("Duarte").
Pursuant to CPLR 3215, this Court granted plaintiff's motion for default judgment against Duarte on April 19, 2018 (NYSCEF Doc No. 18, decision/order).
Plaintiff claims that he was injured due to defendants' ordinary negligence when he suffered personal injuries in the motor vehicle accident stemming from the police chase. Defendants now move for summary judgment to dismiss the complaint with prejudice, which plaintiff opposes.
Defendants' primary contention is that McCue and Williams did not act recklessly within the meaning of the applicable legal standards and, thus, are afforded a qualified privilege from imposing civil liability. Additionally, defendants argue that McCue and Williams were engaged in an "emergency operation" inasmuch as Duarte's actions as the fleeing motorist initiated the police pursuit and that his erratic operation of his vehicle was the proximate cause of the accident. Plaintiff counters that the reckless standard is inapplicable inasmuch as McCue and Williams were not engaged in an "emergency operation" at commencement of the police pursuit and, as such, they should not be afforded the qualified privilege within the scope of Vehicle and Traffic Law § 1104.
Plaintiff briefly argues in his opposition that The City of Mount Vernon and the Mount Vernon Police Department negligently trained and supervised McCue and Williams in connection with the appropriate procedures for conducting a fresh police pursuit. Defendants failed to squarely address this issue in their papers. Notwithstanding, plaintiff has failed to demonstrate the existence of a material issue of fact in this regard inasmuch as McCue and Williams followed the proper departmental rules and procedures in conducting the high-speed pursuit (see Turini v. County of Suffolk , 8 AD3d 260, 262 [2d Dept 2004], lv denied 3 NY3d 611 [2004] ; King v. Village of Cobleskill , 237 AD2d 689, 690 [3d Dept 1997] ; Martelli v. City of New York , 219 AD2d 586, 587 [2d Dept 1995] ).
In support of their motion for summary judgment, defendants submitted, among other things, transcripts of the deposition testimony of plaintiff, McCue, Williams, and Lieutenant Michael Marcucilli (Ex. E-I), an audio recording of the police dispatch radio call (Ex. L), the DMV accident report (Ex. M), a police incident report detailing the narrative of the incident (Ex. N), and seven uniform traffic tickets issued by McCue to Duarte in connection with the episode (Ex. O).
In opposition, plaintiff submitted, among other things, his affidavit and an affidavit from Maxine Allan, a resident of Mount Vernon who lived near the site of the accident (about 100 feet from the intersection) and heard the ensuing crash, a section of the operational procedures of the Mount Vernon Police Department detailing fresh pursuits (Ex. 2), the felony complaint charging Duarte with reckless endangerment in the first degree (see Penal Law § 120.25 ) (Ex. 3), and several photos displaying the aftermath of the accident (Ex. 4, 7).
DISCUSSION
CPLR 3212 (b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." To that end, it is well settled that the proponent of the 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 (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Winegrad v. New York Univ. Med. Center , 64 NY2d 851, 853 [1985] ; Zuckerman v. City of New York , 49 NY2d 557, 560 [1980] ; De Souza v. Empire Tr. Mix, Inc. , 155 AD3d 605, 606 [2d Dept 2017] ). Importantly, "[o]nce this showing has been made, the burden then 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" ( Alvarez v. Prospect Hosp. , 68 NY2d at 324 ; see De Souza v. Empire Tr. Mix, Inc. , 155 AD3d at 606 ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to create a material issue of fact" ( Zuckerman v. City of New York, 49 NY2d at 562 ; see Hammond v. Smith , 151 AD3d 1896, 1898 [4th Dept 2017], lv denied 153 AD3d 1677 [2017] ).
On a summary judgment motion, a court is obligated to determine whether there are issues of fact that militate against granting that relief to the parties. Moreover, "[i]t is not the court's function on a motion for summary judgment to assess [issues of] credibility" ( Chimbo v. Bolivar , 142 AD3d 944, 945 [2d Dept 2016] ; Garcia v. Stewart , 120 AD3d 1298, 1299 [2d Dept 2014] ), nor to "engage in the weighing of evidence" ( Chimbo v. Bolivar , 142 AD3d at 945 ; Scott v. Long Is. Power Auth ., 294 AD2d 348, 348 [2d Dept 2002] ). "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact" ( Bykov v. Brody , 150 AD3d 808, 809 [2d Dept 2017] ; accord Kahan v. Spira , 88 AD3d 964, 966 [2d Dept 2011] ). Thus, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" ( Ruiz v. Griffin , 71 AD3d 1112, 1115 [2d Dept 2010] ; accord Civil Serv. Empls. Assn. v. County of Nassau , 144 AD3d 1077, 1079 [2d Dept 2016] ).
As for the merits of the instant action, Vehicle and Traffic Law § 1104 affords the driver of an authorized emergency vehicle special driving privileges when involved in an emergency operation (see Vehicle and Traffic Law § 1104 [a], [b] ; Frezzell v. City of New York , 24 NY3d 213, 217 [2014] ; Kabir v. County of Monroe , 16 NY3d 217, 220 [2011] ; McGough v. City of Long Beach , ––– AD3d ––––, 2019 NY Slip Op 05653, *2 [2d Dept 2019] ). To that end, prior precedent holds that "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 , 24 NY3d at 217, quoting Vehicle and Traffic Law § 1104 [e] ; see Saarinen v. Kerr , 84 NY2d 494, 501 [1994] ; Campbell v. City of Elmira , 84 NY2d 505, 509-513 [1994] ; Mouzakes v. County of Suffolk , 94 AD3d 829, 830 [2d Dept 2012] ). Importantly, reckless disregard "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" and "[t]his standard demands more than a showing of lack of due care under the circumstances" ( Saarinen v. Kerr , 84 NY2d at 501 [internal quotation marks and citation omitted]; see Nurse v. City of New York , 56 AD3d 442, 443 [2d Dept 2008] ; Powell v. City of Mount Vernon , 228 AD2d 572, 573 [2d Dept 1996], lvs denied 89 NY2d 806, 807 [1997] ).
As is also relevant here, Vehicle and Traffic Law § 114-b defines "emergency operation" as "[t]he operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in ... pursuing an actual or suspected violator of the law" (see Criscione v. City of New York , 97 NY2d 152, 156 [2001] ). Specifically, "[w]hen a driver of an authorized emergency vehicle is involved in an emergency operation and engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law§ 1104 (b), a reckless disregard standard of care applies in determining civil liability for damages resulting from the privileged operation of the emergency vehicle" ( McGough v. City of Long Beach , 2019 NY Slip Op 05653 at *2-3; see Vehicle and Traffic Law § 1104 [e] ; Kabir v. County of Monroe , 16 NY3d at 220 ).
Generally, the standard of care for determining civil liability is ordinary negligence (see Kabir v. County of Monroe , 16 NY3d 217, 220 [2011] ; Portalatin v. City of New York , 165 AD3d 1302, 1302-1303 [2d Dept 2018] ).
Here, the Court finds that defendants established their prima facie entitlement to judgment as a matter of law inasmuch as there are no material issues of fact in regard to McCue's and Williams' alleged reckless regard for public safety (see McGough v. City of Long Beach , 2019 NY Slip Op 05653 at *3; Powell v. City of Mount Vernon , 228 AD2d at 573 ). Plaintiff, in turn, failed to raise a triable issue of fact in opposition to rebut defendants' evidence (see Jimenez-Cruz v. City of New York , 170 AD3d 975, 977 [2d Dept 2019] ; Mouzakes v. County of Suffolk , 94 AD3d at 830 ; Gonzalez v. Zavala , 88 AD3d 946, 948 [2d Dept 2011] ). In any event, the proximate cause of the accident was Duarte's erratic and improper operation of his vehicle, and not the manner in which the police officers conducted their pursuit of a fleeing motorist (see Nurse v. City of New York , 56 AD3d at 443 ; Dibble v. Town of Rotterdam , 234 AD2d 733, 735 [3d Dept 1996], lv denied 89 NY2d 811 [1997] ; Paige v. Rocco , 214 AD2d 662, 663 [2d Dept 1995], lv denied 86 NY2d 710 [1995] ).
In particular, the police officers both testified at their depositions that they saw a person driving a pickup truck on the wrong side of the road, which initially caught their attention, and the vehicle apparently had a "blue rotating emergency light" activated. As such, they began following the vehicle because it resembled a truck which — based on a police report from the prior night — involved a home burglary by assailants who were posing as police officers. Upon following the vehicle, they decided to conduct a motor vehicle stop shortly thereafter, wherein McCue made a radio transmission to dispatch advising of same and Williams activated police sirens so as to signal to Duarte to pull over and make a full stop of his vehicle. The officers testified that Duarte failed to comply with their directive despite being aware of the prospective traffic stop and, instead, accelerated his vehicle, prompting them to initiate a full-fledged pursuit of Duarte, wherein Williams was driving between 35 to 45 miles per hour. McCue then radioed central dispatch about the fleeing vehicle, provided a general description thereof and notified dispatch of their respective location. Importantly, the police officers testified that they observed the fleeing motorist driving roughly 60 miles per hour and passing through several red lights, which they considered as highly dangerous. Subsequently, the fleeing motorist, Duarte, entered the intersection between 2nd Street and South 12th Avenue, running through a stop sign and ultimately collided with plaintiff's vehicle. The entire police pursuit conducted by the officers spanned under a minute, and, moreover, the distance from the beginning of the pursuit to the intersection where the collision occurred was approximately one mile — an undisputed fact of which the Court takes judicial notice (see generally Yelder v. Walters , 64 AD3d 762, 768 [2d Dept 2009] ; Rosario v. Morias , 8 AD3d 108 [1st Dept 2004] ; Prince, Richardson on Evidence § 2—204 [a] [Farrell 11th ed.] ).
Further, the police dispatch radio call corroborates McCue's and Williams' version of the events insofar that they were pursuing a vehicle operated by an unknown suspect and, in less than a minute during the ensuing pursuit, plaintiff's vehicle was ultimately "T-boned" by the suspect's automobile (Ex. L). Likewise, the DMV accident report confirmed that Duarte's vehicle struck plaintiff's vehicle from a right angle at the intersection of 2nd Street and South 12th Avenue (Ex. M). The police officers observed Duarte commit several moving violations, citing him for driving while his ability was impaired by drugs (see Vehicle and Traffic Law § 1192 [4] ), reckless driving, which is a misdemeanor (see Vehicle and Traffic Law § 1212 ), failure to stop at a red light (see Vehicle and Traffic Law § 1111 [d] [1] ), failure to stop at a stop sign (see Vehicle and Traffic Law § 1272 [a] ), and driving at an unreasonable speed (see Vehicle and Traffic Law § 1180 [a] ). In addition, the police incident report detailed McCue's narrative of the events which is consistent with the officers' deposition testimony.
Subsequent to the accident, a police search of Duarte's Chevrolet Silverado pickup truck revealed that he was in possession of a hypodermic syringe and metal spoon containing what appeared to be heroin residue as well as 23 12—gauge shotgun shells were found inside his vehicle (Ex. N).
The departmental operational procedures define a "police vehicle pursuit" as when: (1) "[a] motorist knows a [p]olice [o]fficer wants him [or her] to pull over and stop"; (2) the motorist deliberately takes action in an attempt to evade the [o]fficer"; and (3) "[t]he officer engages in an attempt to overtake and stop such motorist." Notably, the procedures set forth that a pursuit does not commence until the "pursuing officer believes that the motorist is deliberately attempting to evade [police]." Additionally, the procedures explain that, when engaged in a pursuit, policers officers should employ the utmost caution and be aware of the inherent dangers to innocent bystanders. Plaintiff, however, failed to proffer any evidence that the officers' actions were to the contrary. Rather, he simply testified that he did not see the vehicle that was being operated by Duarte moments before it struck his automobile and also averred that he did not hear any sirens, horns, or screeching of car brakes that would have led him to believe that a sudden impact was imminent. Likewise, plaintiff's affidavit lacked probative value wherein he asserted, among other things, that, when he visited the precinct, Williams relayed to him that he observed his vehicle "flip over and slide" approximately 35 feet and strike a parked vehicle and that McCue stated to him that the officers were "front row seat witnesses" who saw the crash, believing that the accident would be fatal.
Similarly, Allan's affidavit was of minimal evidentiary value wherein she asserted, among other things, that plaintiff was a well-known acquaintance since the two were former classmates in Jamaica — which plaintiff confirmed at his deposition. In her affidavit, Allan merely stated that she was standing near the kitchen window on the day in question, that the window was closed, and that she "heard a loud sound like metal pans banging." Having not been an actual eyewitness to the collision — a fact which plaintiff does not refute — Allan averred that she ran outside and saw plaintiff's vehicle overturned in close proximity to her residence. She added that, prior to the crash, she did not "hear any police sirens" and that she would have heard as much regardless if the windows were closed. Notwithstanding, whether Allan would have heard police sirens is based upon mere speculation and conjecture and is therefore insufficient to raise a triable issue of fact (see Gaige v. Kepler , 303 AD2d 626, 628 [2d Dept 2003] ; Menekou v. Crean , 222 AD2d 418, 420 [2d Dept 1995] ).
Lastly, Marcucilli, a 24-year veteran of the Mount Vernon Police Department, testified that he was working as a traffic enforcement unit sergeant on the day in question, was in uniform, and patrolling a nearby area in a marked police vehicle. Despite having no clear recollection of the incident, he stated that he responded to the scene of the collision and otherwise had no knowledge of how the accident occurred. Marcucilli confirmed that an unmarked police vehicle may conduct a fresh pursuit virtually the same as a marked police vehicle. He added that, if an unmarked vehicle engages in pursuit, that vehicle ordinarily continues to follow the fleeing motorist unless a marked unit gets in closer proximity and overtakes it as the lead vehicle. Given how rapidly the events unfolded, Marcucilli believed that whether Duarte nearly missed a head-on collision with his marked patrol car was a possible mistake. Marcucilli further explained that a police pursuit may be predicated on a mere traffic infraction given that police officers have a general duty to address all traffic violations while on patrol. Also, he stated that serious traffic violations include, among others, running through a stop sign, red light, speeding, or reckless driving, whereupon police can issue a summons. Notably, Marcucilli added that the primary factor in police ceasing a pursuit is whether there is a substantial risk to public safety.
Applying Vehicle and Traffic Law § 1104 in the context presented here, the police officers' conduct in pursuing Duarte — an actual or suspected lawbreaker — is not subject to civil liability based on the broad statutory language and a fair interpretation of the evidence (see Frezzell v. City of New York , 24 NY3d at 217 ; Saarinen v. Kerr , 84 NY2d at 501 ; see also Estate of Gambino-Vasile v. Town of Warwick , 62 Misc 3d 646, 659 [Sup Ct, Orange County 2018] ). In particular, Duarte was observed by two police officers to be a violator of the law on the basis of moving violation(s), thereby justifying the officers' pursuit (see Vehicle and Traffic Law § 114-b ; Criscione v. City of New York , 97 NY2d at 156 ; Young v. Village of Lynbrook , 234 AD2d 455, 455 [2d Dept 1996], lv denied 89 NY2d 812 [1997] ). Of import, defendants made a prima facie showing that McCue and Williams were engaged in an emergency operation at the time of the underlying accident, and that their conduct did not rise to the level of reckless disregard for the safety of others (see Gonzalez v. Zavala , 88 AD3d at 948 ; Nurse v. City of New York , 56 AD3d at 443 ; Puntarich v. County of Suffolk , 47 AD3d 785, 786 [2d Dept 2008] ). The evidence demonstrates that Duarte's conduct, as the fleeing motorist, posed a greater threat to public safety and, as such, police were authorized to " ‘use whatever means necessary, short of the proscribed recklessness, to overtake and stop the offending driver’ " ( Powell v. City of Mount Vernon , 228 AD2d at 573, quoting Saarinen v. Kerr , 84 NY2d at 503 ). Although there was conflicting testimony in regard to whether the police officers had activated their sirens immediately preceding the crash (see e.g. Daniels v. City of New York , 28 AD3d 415, 416 [2d Dept 2006], lv dismissed and denied 7 NY3d 825 [2006] ; Turini v. County of Suffolk , 8 AD3d 260, 261 [2d Dept 2004], lv denied 3 NY3d 611 [2004] ), or if Duarte was driving with blue emergency lights, that in and of itself does not "constitute a predicate for the imposition of liability" ( Powell v. City of Mount Vernon , 228 AD2d at 573 ; see Vehicle and Traffic Law § 1104 [b] [3] ; Schieren v. State of New York , 281 AD2d 828, 831 [3d Dept 2001] ; Dibble v. Town of Rotterdam , 234 AD2d at 735 ). Thus, McCue's and Williams' testimony, in combination with the other evidence submitted by the parties, established that defendants were entitled to judgment as a matter of law by establishing that the officers' conduct was not reckless when viewed in its totality (see Daniels v. City of New York , 28 AD3d at 416 ; Mulligan v. City of New York , 245 AD2d 277, 278 [2d Dept 1997] ).
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied. Accordingly, it is hereby:
ORDERED that the motion of THE CITY OF MOUNT VERNON, MOUNT VERNON POLICE DEPARTMENT, DETECTIVE McCUE and DETECTIVE WILLIAMS (Mot. Seq. 2) as against plaintiff, DALE PETERKIN, made pursuant to CPLR 3212, for summary judgment and dismissal of the complaint, is granted; and it is further
ORDERED that plaintiff DALE PETERKIN and defendant MAURO A. DUARTE shall appear at the Settlement Conference Part of this Court, Room 1600, on October 8, 2019, at 9:15 A.M. for the scheduling of an inquest to be conducted on the issue of damages as against defendant MAURO A. DUARTE; and it is further
ORDERED that defendants shall serve a copy of this Decision/Order upon defendant MAURO A. DUARTE by certified mail/return receipt requested, and by first-class mail.
The foregoing constitutes the Decision/Order of the Court.