Opinion
Index 618262/2018
09-30-2020
RAMON ANTONIO RAMOS, Plaintiff, v. COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT, and POLICE OFFICER CHRISTOPHER VITALE, Defendants,
DAVID J. RAIMONDO & ASSOCIATES Attorney for Plaintiff DENNIS M. COHEN, ESQ. SUFFOLK COUNTY ATTORNEY
Unpublished Opinion
MOTION DATE: 2/20/2020
MOTION DATE: 3/5/2020
ADJ. DATE: 7/30/2020
DAVID J. RAIMONDO & ASSOCIATES
Attorney for Plaintiff
DENNIS M. COHEN, ESQ.
SUFFOLK COUNTY ATTORNEY
PRESENT: HON. JOSEPH FARNETI, ACTING JUSTICE OF THE SUPREME COURT.
SHORT FORM ORDER
HON. JOSEPH FARNETI, Acting Justice Supreme Court.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by plaintiff, filed January 15, 2020: "Notice of Cross Motion and supporting papers by defendants, filed February 25, 2020; Answering Affidavits and supporting papers_; Replying Affidavits and supporting papers by plaintiff. Filed May 5, 2020: by defendants filed. May 6, 2020: Other __; it is
ORDERED that the motion by plaintiff Ramon Antonio Ramos for, inter alia, summary judgment in his favor and against defendants County of Suffolk, Suffolk County Police Department, and Police Officer Christopher Vitale is granted in part and denied in part; and it is further
ORDERED that the cross motion by defendants Suffolk, Suffolk County Police Department, and Police Officer Christopher Vitale for summary judgment dismissing the complaint is denied.
Plaintiff Ramon Antonio Ramos commenced this action to recover for personal injuries he allegedly sustained as a result of a motor vehicle-bicycle accident that occurred on December 18, 2017, at approximately 4:18 p.m, in the marked crosswalk at the intersection of Third Avenue and Union Boulevard in Islip, New York. The accident allegedly occurred when a Suffolk County Police Department (“SCPD") vehicle, operated by Police Officer Christopher Vitale, attempted to make a left turn from westbound Union Boulevard onto southbound Third Avenue, and struck plaintiff s bicycle, which was traveling eastbound on Union Boulevard in a marked crosswalk.
Plaintiff now moves for summary judgment in his favor on the issue of defendants' negligence. He also seeks to strike defendants' first affirmative defense of culpable conduct, second affirmative defense of assumption of risk, third affirmative defense of failure to state a cause of action pursuant to Insurance Law §5012 (d), and seventh affirmative defense premised upon Vehicle and Traffic Law §§ 1103 and 1104. Plaintiff also seeks an immediate trial for the purpose of assessing damages. Plaintiff argues mat Officer Vitale was negligent in violating, inter alia, Vehicle and Traffic Law § 1141, by failing to yield the right-of-way to his bicycle. In support of his motion, plaintiff submits, among other things, his affidavit, the transcripts of his testimony from his hearing held pursuant to General Municipal Law § 5.0-h and from his examination before trial, and the transcript of Officer Vitale's testimony from his examination before trial.
Defendants cross-move for summary judgment dismissing the complaint. They contend that Officer Vitale only can he held liable for injuries to plaintiff if he acted in reckless disregard in the operation of his vehicle, and that his conduct did not rise to the level of reckless disregard. In support of their cross motion, defendants submit, among other things, the transcripts of plaintiff s testimony from his hearing held pursuant to General Municipal Law § 50-h and from his examination before trial, and the transcript of Officer Vitale's testimony from his examination before trial.
At plaintiff's statutory hearing, he testified mat he was riding a bicycle at the time of the accident, that prior to the accident he had a green light in his favor, and that he checked for oncoming traffic before crossing over Third Avenue in the marked crosswalk. Plaintiff testified that he observed Officer Vitale's vehicle, which was traveling on Union Boulevard, with no lights illuminated and no directional signals activated at that time. Plaintiff further testified that the accident occurred when he was in the middle of the crosswalk, and Officer Vitale's vehicle suddenly turned left, striking the left side of his body. Plaintiff stated that there was a crosswalk control device, but that he did not recall the signal displayed. The roads allegedly were dry and it allegedly was light outside at the time of the accident. Plaintiff stated that he lost consciousness after the impact, and that he did not regain consciousness until he was at the hospital.
At plaintiff s deposition, he testified that prior to the accident, he stopped at the intersection to check for oncoming traffic. Plaintiff further testified that Officer Vitale's vehicle did not have any lights, signals, or sirens activated at the time of the accident. Officer Vitale's vehicle allegedly did not slow down as it approached the intersection. Plaintiff testified that prior to the collision, the pedestrian traffic signal was lit with a "doll." He also testified that traffic was "light" at the time; of the accident, and he subsequently stated that there was no traffic. Plaintiff stated that he did not speak to a police officer regarding the: accident after it occurred.
In plaintiffs affidavit, he avers that prior to the accident, he was riding his bicycle eastbound on the sidewalk along Union Boulevard, and that he brought his bicycle to a stop at the end the sidewalk at the intersection: of Union Boulevard and Third Avenue. He further avers that he observed that the crossing signal on the opposite side of the sidewalk on Third Avenue was illuminated, and that he checked for oncoming:vehicle traveling on Third Avenue before crossings He states that he observed Officer Vitale's vehicle, which had no emergency lights or directional signals activated, traveling westbound on Union Boulevard, at that time. Plaintiff avers that the accident Occurred when his bicycle, which was halfway across the marked crosswalk, crossing over Third Avenue, was struck by Officer Vitale's vehicle, which attempted to make a left turn, without signaling, onto southbound Third Avenue.
At Officer Vitale's deposition, he testified that he was operating a SCPD vehicle on the date of the accident. He stated that he was en route to a call regarding ''disorderly males by a dumpster," and that he was not responding to an emergency at that time. Officer Vitale explained that prior to the accident, his vehicle was traveling westbound on Union Avenue with a green light in its favor, and that he Was waiting for "eastbound traffic to go straight" before making a left turn at the intersection. He testified that his left directional was activated at the time of the accident. He further explained that "as [he] was making the turn, [he] had already hit the sun glare, which kind of blurred [his] vision a little bit." Officer Vitale testified that; he did not see plaintiff until the moment of impact. He subsequently testified that he saw plaintiff "maybe a second before" the impact. According to Officer Vitale's testimony, his supervisor, Officer Augustine, arrived at the scene of the accident to complete an accident report, and Officer Vitale explained to him how the accident occurred. There allegedly were no other witnesses or vehicles in the vicinity of the accident.
A person operating a bicycle on a roadway is entitled the rights and bears the responsibilities of a driver operating a motor vehicle (see Vehicle and Traffic Law § 1231; Lindner v Guzman, 163 A.D.3d 947, 82 N.Y.S.3d 476 [2d Dept 2018]; Palma v Sherman, 55 A.D.3d 891, 891, 867 N.Y.S.2d 111 [2d Dept 2008]). In general, an operator of a motor vehicle is required to keep a reasonably vigilant lookout for bicyclists, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road (see Chilinski v Maloney, 158 A.D.3d 1174, 70 N.Y.S.3d 635 [4d Dept 2018]; Palma v Sherman, supra). Vehicle and Traffic Law § 1141 further requires that a vehicle intending to turn left Within an intersection or into an alley, private road, or driveway must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard (see Ming-Fai Jon v Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 [2d Dept 2018]; Giannone v Urdahl, 165 A.D.3d 1062, 86 N.Y.S.3d 562 [2d Dept 2018]; Lebron v Menšah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]). Nonetheless, a bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position (see Flores v Rubensiein, 175 A.D.3d 1490, 109 N.Y.S.3d 390 [2d Dept 2019]; Palma v Sherman, supra).
Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws When they are involved in an "emergency operation" (see Fuchs v City of New York, 186 A.D.3d 459, 126 N.Y.S.3d 652 [2d Dept 2020]; Anderson v Suffolk County Police Dept., 181 A.D.3d 765, 121 N.Y.S.3d 304 [2d Dept 2020]). An "emergency operation," as defined by Vehicle: and Traffic Law § 114-b, includes, among other things, "responding to, or working or assisting., . [a] police call." The privileges set forth in Vehicle and Traffic Law § 1104 include disregarding regulations governing the direction of movement or turning in specified directions (see Vehicle and Traffic Law § 1104[a]; [b] [4]). Nonetheless, the privileges afforded by Vehicle and Traffic Law §1104 "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" (Vehicle and Traffic Law § 1104 [e]; see Fucks v City of New York, supra; Anderson v Suffolk County Police Dept., supra). Thus, the manner in which a driver of an authorized emergency vehicle operates the vehicle in an emergency situation may not form the basis for civil liability to an injured third party except when that authorized emergency driver acted in reckless disregard for the safety of other (see Saarinen v Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297 [1994]; Fuchs v City of New York, supra; Wong v City of New York, 183 A.D.3d 635, 121 N.Y.S.3d 610 [2d Dept 2020]). The "reckless disregard" standard requires proof that "that the driver intentionally committed an act of an unreasonable character, while disregarding a known or obvious risk that was so great as to make it highly probable that harm would follow" (Calixto v City of New York, 185 A.D.3d 543, 544-545, 124 N.Y.S.3d 879 [2d Dept 2020], quoting Rios v City of New York, 144 A.D.3d 1011, 1011-1012, 42 N.Y.S.3d 54 [2d Dept 2016]; see Wong v City of New York, supra).
Defendants established that Officer Vitale was engaged in an emergency operation at the time of the accident (see Vehicle and Traffic Law § 114-b; Proce v Town of Stony Point, 185 A.D.3d 975, 127 N.Y.S.3d 541 [2d Dept 2020]; Martinez v City of New York, 175 A.D.3d 1284, 105 N.Y.S.3d 901 [2d Dept 2019]). Officer Vitale's deposition testimony indicates that he was responding to a call for assistance at the time of the accident. Contrary to plaintiff's contention, Officer Vitale's testimony that he was not responding to an "emergency" at the time of the accident is irrelevant inasmuch as Vehicle and Traffic Law § 114-b evinces no "legislative intent to vary the definition of 'emergency operation' based on individual police department incident classifications" (Criscione v City of New York, 97 N.Y.2d 152, 157, 736 N.Y.S.2d 656 [2001]; see Oddo v City of Buffalo, 159 A.D.3d 1519, 72 N.Y.S.3d 706 [4d Dept 2018]), In light of the foregoing, the branches of plaintiff s motion seeking summary judgment in his favor on the issue of defendants' negligence, and dismissal of defendants' seventh affirmative defense premised upon Vehicle and Traffic Law §§ 1103 and 1104 are denied.
Nonetheless, defendants' submissions failed to establish., prima facie, that Officer Vitale did not act in reckless disregard for the safety of others in the operation of his vehicle (see Rodriguez-Garcia v Southampton Police Dept, 185 A.D.3d 744, 124 N.Y.S.3d 870 [2D Dept 2020]; Cordero v Nunez, 179 A.D.3d 635, 113 N.Y.S.3d 593 [2d Dept 2020]; Connelly v City of Syracuse, 103 A.D.3d 1242, 959 N.Y.S.2d 779 [4d Dept 2013]; Burrell v City of New York, 49 A.D.3d 482, 853 N.Y.S.2d 598 [2d Dept 2008]; cf. Jimenez-Cruz v City of New York, 170 A.D.3d 975, 95 N.Y.S.3d 573 [2d Dept 2019]). As previously indicated, Officer Vitale's deposition testimony demonstrates that his visibility was obstructed by sun glare before he attempted to turn left, and that he did not see plaintiff until at most "maybe one second" before the collision. Officer Vitale admitted that his vehicle had neither emergency lights nor sirens activated at the time of the accident. Moreover, defendants presented conflicting evidence as to whether Officer Vitale activated his vehicle's left turn signal prior to the collision. As defendants failed to make a prima facie case, their motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med, Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
As to the branches of plaintiff s motion seeking dismissal of defendants' first, second, and third affirmative defenses, when moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of:law (see Edwards v Walsh, 169 A.D.3d 865, 94 N.Y.S.3d 629 [2d Dept 2019]; Gonzalez v Wingate at Beacon, 137 A.D.3d 747, 26 N.Y.S.3d 562 [2d Dept 2016]; Bank of N.Y. v Penalyer, 125 A.D.3d 796, 797, 1 N.Y.S.3d 825 [2d Dept 2015]). In the context of a motion to dismiss ah affirmative defense, "the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (LG Funding, LLC v United Senior Props, of Olathe, LLC, 181 A.D.3d 664, 665, 122 N.Y.S.3d 309 [2d Dept 2020], quoting Bank of N.Y. v Penalver, supra at 797; see Gonzalez v Wingate at Beacon, supra).
As to defendants' first affirmative defense of culpable conduct, the issue of issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion when the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Hai Ying Xiao v Martinez, 185 A.D.3d 1014, 126 N.Y.S.3d 369 [2d Dept 2020]; Balladares v City of New York, 177 A.D.3d 942, 114 N.Y.S.3d 448 [2d Dept 20.19]; Higashi v M &R Scarsdale Rest, LLC, 176 A.D.3d 788, 111 N.Y.S.3d 92 [2d Dept 2019]). Although a driver with the right-of-way is entitled to anticipate that other drivers will obey traffic laws requiring them to yield to him or her, a driver with the right-of-way still has a duty to use reasonable care to avoid a collision (see Ballentine v Perrqne, 179 A.D.3d 993, 114 N.Y.S.3d 696 [2d Dept 2020]; Fernandezv American United Transp., Inc., 177 A.D.3d 704, 113 N.Y.S.3d 145 [2d Dept 2019]; Jeong Sook Lee-Son v Doe, 170 A.D.3d 973, 96 N.Y.S.3d 302 [2d Dept 2019]). Nonetheless, a driver with the right-of-way who only has seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision. (see Balladares v City of New York, 177 A.D.3d 942, 114 N.Y.S.3d 448 [2d Dept 2019]; Fernandez v American United Transp., Inc, supra; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]).
Plaintiff s submissions were sufficient to establish his entitlement to summary judgment dismissing defendant's; first affirmative defense of culpable conduct (see Lebron v Mensdft, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]; Foley v Santucci, 135 A.D.3d 813, 23 N.Y.S.3d 338 [2d Dept 2016]; Sirlin v Schreib, 117 A.D.3d 819, 985 N.Y.S.2d 688 [2d Dept 20014]). Contrary to defendants' contention, the certified police accident report is admissible under the business record exception of CPLR 4518 (a) inasmuch as the information contained in the police accident report was based upon information provided by Officer Vitate, who was a witness and police officer at the accident scene with a duty to report his observations to the reporting officer, Officer Augustine (see Lindsay y Academy Broadway Corp., 198 A.D.2d 641, 603 N.Y.S.2d 622 [3d Dept 1993]; cf Memenza v Cole, 131 A.D.3d 1020, 16 N.Y.S.3d 287 [2d Dept 2015]; Matter of Chu Man Woo v Qiong YunXi, 106 A.D.3d 818, 964 N.Y.S.2d 647 [2d Dept 2013]), Plaintiff demonstrated mat he was entitled to assume that Officer Vitale would obey the traffic laws requiring him to yield, and that he had at most seconds to react to avoid the collision (see Foley v Santucci, supra, Rohn v Aly, 167 A.D.3d 1054, 91 N.Y.S.3d 256 [2d Dept 2018]). In opposition, defendants failed to raise a triable issue of fact (see Smith v Fuentes, 158 A.D.3d 731, 68 N.Y.S.3d 739 [2d Dept 2018]; Foley v Santucci, supra). Thus, plaintiff s application to dismiss defendants' affirmative defense of culpable conduct is granted.
Plaintiff is also entitled to dismissal of defendants:' second affirmative defense of assumption of risk. Plaintiff testified that he was riding his bicycle on a roadway at the time of the accident. "The mere riding of a bicycle does not mean the assumption of risk by the rider that, he may be hit by a car" (Story v Howes, 41 A.D.2d 925, 925, 344 N.Y.S.2d 10 [1st Dept 1973]). In opposition to plaintiff s prima facie showing of entitlement to summary judgment dismissing defendants' affirmative defense of assumption of risk, defendants failed to raise a triable issue of fact as to the applicability of the assumption of risk doctrine (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Thus, plaintiffs application to dismiss defendants' Second affirmative defense of assumption of risk is granted.
With respect to defendants' third affirmative defense of failure to state a cause of action pursuant to Insurance Law § 5012 (d), no motion lies under lies under CPLR 32lf(b) to strike such a defense, "as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim" (Lewis v U.S. Bank N.A., 186 A.D.3d 694, 697, 2020 NY Slip Op 04547 [2d Dept 2020], quoting Jacob Marion, LLC v Jones, 168 A.D.3d 1043, 1044, 93 N.Y.S.3d 120 [2d Dept 2019]; Mazzei v Kyriacou, 98 A.D.3d 1088, 951 N.Y.S.2d 557 [2d Dept 2012]). A plaintiff moving for summary judgment;on the issue of serious injury must make a prima facie showing that he or she suffered serious injuries pursuant to Insurance Law § 5102 (d), and that his or her injury was causally related to the accident (see Wilcoxen v Patladino, 122 A.D.3d 727, 996 N.Y.S.2d 191 [2d Dept 2014]; Nicholson v Bader, 105 A.D.3d 719, 962 N.Y.S.2d 350 [2d Dept 2013]; Alexander v Gordon, 95 A.D.3d 1245, 945 N.Y.S.2d 397 [2d Dept 2012]; Kapeleris v Riordan, 89 A.D.3d 903, 933 N.Y.S.2d 92 [2d Dept 2011]). Insurance Law § 5102 (d) defines "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
As plaintiff failed to address the issue of whether he sustained a "serious injury" within the meaning of Insurance Law §5012 (d) as a result of the subject accident in his moving papers, he failed to make a prima facie case that he sustained a Serious injury within the meaning of the statute (see Dowling v Valeus, 119 A.D.3d 834, 989 N.Y.S.2d 386 [2d Dept 2014]; Altamura v OneBeacon Ins. Group, 68 A.D.3d 792, 889 N.Y.S.2d 472 [2d Dept 2009]). Thus, plaintiff s application to dismiss defendants' third affirmative: defense of failure to state a cause of action pursuant to Insurance Law § 5012 (d) is denied. Plaintiffs application for an immediate trial for the purpose of assessing damages is also denied.
Accordingly, the motion by plaintiff is granted in part and denied;in part, and the cross motion by defendants is denied.