Walsh v City of New York

[*1] Walsh v City of New York 2012 NY Slip Op 51555(U) Decided on August 15, 2012 Ct Cl Ash, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 15, 2012
Ct Cl

Kathleen Walsh, Plaintiff(s),

against

The City of New York, Defendant(s).



30091/1987



Plaintiff was represented by Sanford F. Young, Esq., Law Offices of Sanford F. Young, PC, New York, NY; Defendant, the City of New York, was represented by Edward T. Timbers, Esq., Corporation Counsel, Brooklyn, NY.

Sylvia G. Ash, J.

PapersNumbered

Notice of Motion and Affidavit Annexed..................1, 2

Opposing Affidavit/Affirmation.................................3

Reply Affidavit/Affirmations........................................4

Other Papers (Exhibits).............................................5

After oral argument and upon the foregoing papers, Defendant, the City of New York ("City"), moves for an Order dismissing Plaintiff's complaint as against it on the basis of laches, or, in the alternative, granting it summary judgment pursuant to the "firefighters rule," or, in the final alternative, compelling Plaintiff to provide further discovery. Plaintiff, KATHLEEN WALSH, opposes and cross-moves for leave to amend her complaint to assert a cause of action pursuant to General Municipal Law ("GML") §205-e.

For the reasons set forth below, the City's motion for summary judgment is DENIED and Plaintiff's cross-motion for leave to amend is GRANTED.

Background

On December 30, 1984, Plaintiff was allegedly injured while she was a passenger in a police vehicle that was involved in an accident with a private vehicle driven by non-party Maria Gangadeen. The accident took place at the intersection of Clarendon Road and New York Avenue in Brooklyn, New York. At the time of the accident, Plaintiff, a New York City Police Officer, was performing the function of "recorder" in the patrol car being operated by Police Officer Robert Weiss.

Around the time of the accident, Officer Weiss and Plaintiff were responding to a 10-85 call, indicating that another police officer needed assistance. The patrol car's emergency lights and sirens were on when Officer Weiss attempted to make a left turn onto New York Avenue from Clarendon Road. The collision with Ms. Gangadeen's vehicle occurred at this intersection. It is the City's position that Officer Weiss was driving the vehicle within the speed limit of 30 miles per hour and that the green light was in his favor.

Plaintiff commenced the instant action by service of a Summons and Verified Complaint on or about March 13, 1986. The City served its answer on April 7, 1986. Plaintiff served her Verified Bill of Particulars on July 27, 1988. Examination Before Trials of Plaintiff and Officer Weiss took place on November 5, 1992 and May 21, 1993, respectively. On July 15, 1993, Plaintiff served a Response to Notice that purportedly alleged violations of GML §205-e. However, Plaintiff never moved to amend her pleadings to include this claim until now.

Plaintiff's case was administratively marked off the calendar on November 12, 1996. In 2004, Plaintiff moved to restore her case, which was granted by Order of the Court on August 11, 2004. Plaintiff then filed her Note of Issue and Certificate of Readiness on September 14, 2004. After several adjournments of post-Note of Issue conferences, Plaintiff's counsel moved to be relieved in early 2007. Plaintiff thereafter vacated her Note of Issue. A compliance conference was scheduled for June 2007, at which point the case was administratively marked off the calendar. The case was restored in early 2011 without opposition. Plaintiff filed her Note of Issue and Certificate of Readiness on June 1, 2011.

The City now moves to dismiss Plaintiff's case on the basis of laches, or, in the alternative, that Plaintiff's causes of action are barred by the firefighter's rule. In the event summary judgment is denied, the City requests that Plaintiff provide the City with fresh HIPAA authorizations for all of her treating/medical providers.

In response, Plaintiff cross-moves to amend her complaint to add a claim under GML §205-e. Plaintiff submits the City would not be prejudiced by the amendment since the City acknowledged that it received notice of her potential §205-e claims when she served her Response to Notice on July 15, 1993.

In her proposed Amended Complaint, Plaintiff contends that Officer Weiss operated the patrol car in violation of Vehicle and Traffic Law ("VTL") §1180[a] and §1180-a, among other [*2]provisions, which concern speeding and the failure to yield the right of way when making a left turn.

With regards to the City's laches argument, Plaintiff argues that said argument was previously put before the Honorable Mark I. Partnow in 2004 and rejected. Plaintiff states that, soon thereafter, she filed her Note of Issue. However, Plaintiff's attorney, Edward S. Reich, Esq. was subsequently convicted of fraud. Mr. Reich withdrew from the practice of law on November 10, 2005. Unbeknownst to Plaintiff, her case was then transferred to another attorney who ultimately withdrew from the action. Plaintiff additionally argues that the City waived the laches argument when it did not oppose her motion to renew in March 2011. Plaintiff's current counsel was retained on May 17, 2011.

In response to Plaintiff's cross-motion, the City argues that Plaintiff proposed amendment should be denied on the grounds that it is "patently devoid of merit." It is the City's position that the evidence demonstrates that Officer Weiss operated the police vehicle in full compliance with the VTL since the uncontested evidence indicates that he had the green light in his favor when he attempted to make his left hand turn onto New York Avenue. With regards to the alleged speeding, the City argues that, notwithstanding Officer Weiss's testimony to the contrary, Plaintiff's testimony was concerning Officer Weiss's rate of speed on the street prior to entering the intersection as opposed to his speed as he was negotiating the left-hand turn.

The City further contends that to the extent Plaintiff claims that Officer Weiss was speeding, since the police officers were engaged in an emergency operation, it is entitled to the reckless disregard standard of care.

In reply, Plaintiff contends that Officer Weiss was not operating the vehicle in an emergency situation because the 10-85 call was called off moments before the accident. Plaintiff further contends that the reckless standard does not apply because the injury-causing conduct, i.e. making a left turn at a green light, does not fall within any of the categories of privileged conduct set forth in VTL §1104[b].

Finally, Plaintiff submits that her testimony regarding the vehicle's excessive speed and Officer Weiss's own testimony that he saw Ms. Gangadeen's vehicle approaching the intersection before he entered the intersection creates an issue of fact as to whether his conduct was reckless.

Discussion

Laches

The Court first turns to the City's motion to dismiss on the basis of laches. Laches is an equitable bar based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 816 [Ct App 2003]). The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches (Id.). "Prejudice is established by showing an injury, change of position, loss of evidence, or some other disadvantage resulting from the delay"(Resk v City of New York, 293 AD2d 661, 662 [2d [*3]Dept 2002]).

Although the City claims that it has been prejudiced by the 26-year delay in the prosecution of this case, the Court is unconvinced. This is not a case where discovery has yet to commence. In fact, Plaintiff has filed her Note of Issue certifying that discovery is complete. It is important to note that, in all of the years since this action was commenced, the City has never made a motion to compel discovery or to vacate the Note of Issue on the grounds that discovery was not produced. Claiming, in hypothetical terms, that it may be disadvantaged at trial, or in re-opening discovery, falls short of displaying actual prejudice or a change in position (see Harris v Pullman's Bar & Grill, Inc., 74 AD2d 818, 819-820 [2d Dept 1980]).

Accordingly, at this juncture, the City has failed to show that dismissal on the basis of laches is warranted.

Firefighter's Rule and Leave to Amend

The "firefighter's rule" bars a police officer from recovering damages for common-law negligence where some act taken in furtherance of a specific police function exposed him or her to a heightened risk of sustaining the particular injury (see Rector v City of New York, 74 AD3d 771, 771 [2d Dept 2010]). General Obligations Law § 11-106 partially abolished this rule by allowing police officers a cause of action in negligence for injuries suffered while in the line of duty (see Alcalde v Riley, 73 AD3d 1101, 1103 [2d Dept 2010]), however, the firefighter's rule still serves as a bar to actions against municipal employers and fellow police officers "where the performance of the police officer's or firefighter's duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury" (Melendez v City of New York, 271 AD2d 416, 417 [2d Dept 2000]).

Accordingly, Plaintiff does not dispute that her cause of action to recover damages from the City under a common-law negligence theory is barred by the firefighter's rule since, here, she was at an increased risk of being injured in a motor vehicle accident by performing the function of the "recorder" in a police car while responding to a police call (see Melendez v City of New York, supra). Thus, to survive dismissal of her action, it is undisputed that she must be granted leave to amend her pleadings to include a GML §205-e claim.

Generally, "[a]pplications for leave to amend pleadings under CPLR 3025[b] should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit" (Maldonado v Newport Gardens, Inc., 91 AD3d 731, 731-32 [2d Dept 2012]). "Additionally, [t]he legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt'" (Lucido v Mancuso, 49 AD3d 220, 227 [2d Dept 2008]).

"However, where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'" (American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d [*4]792, 794 [2d Dept 2009]). "In exercising its discretion, the [C]ourt should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (Cohen v Ho, 38 AD3d 705, 706 [2d Dept 2007]). "Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" (Edenwald Contracting Co., Inc. v City of New York, 60 NY2d 957, 957 [Ct App 1983].

Applying the foregoing, the Court, in its discretion, grants Plaintiff leave to amend her complaint to add a claim under GML § 205-e.

GML § 205-e "authorizes recovery for negligent failure to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements" of any governmental department (Galapo v City of New York, 95 NY2d 568, 572 [Ct App 2000]). "A plaintiff seeking to recover under section 205-e must identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused harm to the police officer" (Aversa v New York City Hous. Auth., 233 AD2d 217, 218 [Ct App 1996]).

Here, Plaintiff alleges, inter alia, that Officer Weiss violated VTL sections pertaining to speeding and yielding the right of way to a vehicle that has entered the intersection from a different highway (see VTL §§ 1180[a], 1140). The Court finds that the proposed amendment is not palpably insufficient or patently devoid of merit.

Although the City contends that the "emergency doctrine" applies to Officer Weiss's conduct, the Court must conclude otherwise. Here, Officer Weiss's conduct of making a left turn at a green light does not fall within any of the four categories of privileged activity set forth in VTL §1104[b] (see Tatishev v City of New York, 84 AD3d 656, 657 [1st Dept 2011]). Thus, the Court is constrained to conclude, pursuant to Kabir v County of Monroe, 16 NY3d 217, 220 [Ct App 2011], that principles of ordinary negligence apply to Officer Weiss's actions despite the fact that Officer Weiss and Plaintiff were responding to an emergency situation.

Based on the record and the foregoing, the Court cannot conclude that the proposed amendment is palpably insufficient or patently devoid of merit.

Furthermore, the Court finds that Plaintiff's hardship in obtaining adequate counsel for a lengthy period of time constitutes a reasonable excuse for the delay in seeking the amendment. While the Court notes that the delay in this case is rather significant, the circumstances presented here were beyond Plaintiff's control. Thus, the Court finds that there was a reasonable excuse for the delay.

Finally, the City has failed to show how it would suffer actual prejudice by allowing the proposed amendment. The City does not dispute that it was aware of Plaintiff's potential GML §205-e claims since 1993 and of her specific allegations in 2004, as presented in Plaintiff's Supplemental Affidavit of Merit. [*5]

With regards to the City's motion for additional discovery, such a request is denied at this juncture with leave to renew. The City has failed to explain why fresh HIPAA authorizations are necessary. The City has never moved to compel Plaintiff's medical records or authorizations or vacate the Note of Issue which indicates that such records/authorizations have already been provided to the City.

Accordingly, it is hereby

ORDERED that the City's motion is DENIED in its entirety; and it is further

ORDERED that Plaintiff's cross-motion to amend to include a GML §205-e claim is GRANTED.

This constitutes the Decision and Order of the Court.

______________________________

Dated: August 15, 2012Sylvia G. Ash, J.S.C.