Peters v City of New York

[*1] Peters v City of New York 2004 NY Slip Op 51469(U) Decided on November 23, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2004
Supreme Court, Kings County

Don J. Peters, Plaintiff,

against

The City of New York, et al.,, Defendants.



Charlene Cowan, Plaintiff, - against -

against

The City of New York, et al., Defendants.



9664/95

Mark I. Partnow, J.

Upon the foregoing papers in these related actions entitled Peters v City of New York (Sup Ct, Kings County, Index No. 9664/95) (action No.1) and Cowan v City of New York (Sup Ct, Kings County, Index No. 10852/95) (action #2) to recover damages for personal injuries, Don J. Peters [*2](Peters), the plaintiff in action # 1, moves for an order, pursuant to CPLR 3126, striking the answer of defendants the City of New York (the City) and the New York City Health and Hospitals Corporation (the NYCHHC) in action # 1 and extending his time to file a note of issue and statement of readiness therein. Charlene Cowan (Cowan), the plaintiff in action # 2, also moves for an order, pursuant to CPLR 3126, striking the answer of the City and the NYCHHC in action # 2 by reason of their alleged failure to comply with the prior orders of the court or, in the alternative, for an order extending her time to serve and file a note of issue until such time as they have complied with said orders. Peters, as a defendant in action # 2, similarly cross-moves for an order, pursuant to CPLR 3126, striking the answer of the City and the NYCHHC or precluding them from offering testimony at the time of trial in action # 2. Defendant Faiz Ahmed (Ahmed) also cross-moves for an order, pursuant to CPLR 3126, striking the answer of the City and the NYCHHC or precluding them from offering testimony at the time of trial in action # 2 and dismissing any cross claims interposed by them against him in that action.

The City and the NYCHHC cross-move for summary judgment dismissing Peters' complaint as against them in action # 1 and Cowan's complaint as against them in action # 2 and all cross claims asserted as against them. Peters moves for summary judgment dismissing Cowan's complaint as against him in action # 2. Ahmed cross-moves for summary judgment dismissing Peters' complaint as against him in action # 1 and Cowan's complaint as against him in action # 2 and all cross claims asserted as against him.

At approximately 1:30 a.m. on June 17, 1994, Peters was operating a 1986 Acura vehicle owned by him when a collision occurred near the intersection of Eastern Parkway and Utica Avenue, in Brooklyn, New York, between his vehicle and a vehicle owned and operated by Ahmed. An Emergency Medical Services Unit of the City of New York (EMS), which was on its way to a sick call in the subway in that area, stopped to render assistance with respect to this accident. The emergency medical technicians, Carol Buffa (Buffa) and Christopher Prescott (Prescott) (the EMS workers) parked the ambulance in front of Peters' vehicle and, then, Buffa took approximately six flares and placed them in the roadway to block off the right westbound lane of the main road of Eastern Parkway, placing the first one behind Peters' vehicle and putting down additional flares in a diagonal pattern about 10 feet apart (up to a distance of about 50 feet from the rear of Peters' vehicle) as she walked east toward the intersection, so that vehicles approaching the accident site would be directed toward the left lane. Due to the injuries sustained by Peters in the collision, Prescott and Buffa had to remove him from the automobile in a stretcher.

While Prescott and Buffa were in the process of placing Peters, who was on the stretcher, into the back of the ambulance, a 1992 Jeep Wrangler owned by defendant Karen Ford and being operated by Keith A. Church-Ford (Church-Ford), who was driving westbound on Eastern Parkway, struck the rear of Peters' parked and vacant vehicle, causing Peters' vehicle to propel forward into the ambulance, injuring Buffa, further injuring Peters, and killing Prescott. The force of the impact also caused the ambulance, which was blocking the crosswalk, to careen forward, striking Cowan, a pedestrian, as she was attempting to go around the ambulance in order to cross from the southwest corner of Eastern Parkway to the northwest corner. Church-Ford tested positive for alcohol intoxication and was arrested at the accident scene, and was, subsequently, found guilty of second degree manslaughter and driving under the influence, and was incarcerated. [*3]

Consequently, on April 11, 1995, Peters commenced action # 1 against the City, the NYCHHC, Ahmed, Church-Ford, and Karen Ford, seeking damages for the personal injuries sustained by him. On May 8, 1995, Cowan commenced action # 2 against the City, the NYCHHC, Ahmed, Peters, Church-Ford, and Karen Ford, seeking damages for the personal injuries sustained by her. Defendants have interposed answers in these two related actions, and the actions were consolidated for joint trial by order dated October 29, 2001.

Peters, Cowan, and Ahmed, by their respective motions and cross motions, assert that the City and the NYCHHC has failed to comply with certain court-ordered discovery, including the production of a videotape of Church-Ford which was made following his arrest and CAD reports for CAD numbers 0170 and 0176 for the subject accident. They argue that sanctions, pursuant to CPLR 3126, such as the striking of the answer of the City and the NYCHHC or the preclusion of evidence as to the matters that are the subject of the discovery demands, should be imposed by this court.

It is well established, however, that the extreme and drastic sanction of striking a party's pleading for failure to comply with discovery is unwarranted absent a clear showing by the moving parties that the failure to comply was willful, contumacious, or in bad faith (Byrne v City of New York, 301 AD2d 489, 490 [2003]; Foncette v LA Express, 295 AD2d 471, 472 [2002]; Fellin v Sahgal, 268 AD2d 456, 456 [2000]; Nabozny v Cappelletti, 267 AD2d 623, 625 [1999]; Kaplan v Emmett, 265 AD2d 307, 307 [1999]; Harris v City of New York, 211 AD2d 663, 664 [1995]; Lestingi v City of New York, 209 AD2d 384, 385 [1994]; Jeffcoat v Andrade, 205 AD2d 374, 374 [1994]). In furtherance of the policy of resolving actions on the merits, whenever possible, litigants who have not replied expeditiously with discovery should be afforded reasonable latitude before imposition of the extreme and harsh penalty of the striking of an answer (Byrne, 301 AD2d at 490; Cigna Prop. & Cas. Co. v Decoration & Design Bldg. Partnership, 268 AD2d 223, 224 [2000]; New v Scores Entertainment, 255 AD2d 108, 108 [1998]; Bassett v Bendo Sangsa Co., 103 AD2d 728, 728 [1984]).

Here, there is no clear showing that the failure of the City and the NYCHHC to comply with discovery orders was willful, contumacious, or in bad faith. The City and the NYCHHC have already produced three deposition witnesses, the New York City Police Department accident investigation squad file, and 35 photographs of the accident location. The City and the NYCHHC have also made some effort to comply with the outstanding discovery requests by providing a partial response to the court order dated August 5, 2003. The City and the NYCHHC have stated that they have encountered some difficulty in obtaining the requested videotape of Church-Ford and have not, to date, located the CAD reports, but plan to renew their search, and request additional time to do so. Furthermore, where, as here, the discovery demanded is potentially exculpatory, it cannot be said that any default is willful, contumacious, or in bad faith (see Ahroni v City of New York, 175 AD2d 789, 789-790 [1991]).

Thus, an order striking the answer of the City and the NYCHHC is not warranted (see Byrne, 301 AD2d at 490; Fellin, 268 AD2d at 456; Kaplan, 265 AD2d at 307). Moreover, since the City and the NYCHHC are, in any event (as discussed below), entitled to summary judgment dismissing the complaints in action # 1 and action # 2 as against them as a matter of law, any order directing the preclusion of the City and the NYCHHC from offering evidence with respect to the issues which are the subject of outstanding discovery orders, is rendered moot. Consequently, the respective motions [*4]and cross motions by Peters, Cowan, and Ahmed for sanctions, pursuant to CPLR 3126, must be denied.

In addressing the cross motion by the City and the NYCHHC for summary judgment dismissing the complaints as against them in action # 1 and action # 2, it is noted that Peters and Cowan base their claims against the City and the NYCHHC on the alleged negligence of the EMS workers in failing to take reasonable measures to warn drivers of the first accident and to control traffic in the area. Specifically, Peters and Cowan rely upon an operating guide of the New York City EMS and the deposition testimony of James D. Scullion (Scullion), a lieutenant/paramedic with the NYCHHC, who arrived at the scene after the second accident occurred and who testified as to the guidelines for the operation of EMS vehicles set forth in this operating guide.

Paragraph 13a of the operating guide describes that the procedure to be followed by EMS workers is to "[p]osition the ambulance, with appropriate warning lights on, in such a manner as to protect the working environment and warn approaching motorists of the hazard." Paragraph 13c and d of the operating guide state, respectively, that EMS workers shall "[u]se appropriate flare pattern to warn approaching motorists of the hazard" and "[c]lose as many lanes of traffic as necessary to ensure a safe working environment." Paragraph 14 of the operating guide specifies that the "[f]lares shall be placed in a linear pattern to direct oncoming motorists away from the accident site," and direct EMS workers to "[n]ote that the warning flare furthest away from the scene should be at least 300 feet away to allow for adequate stopping distance at highway speeds."

Peters and Cowan state that based upon Scullion's deposition testimony as to his observations of the accident scene, the flares extended only about 50 to 60 feet, instead of the 300 feet called for by the operating guide. They argue that this did not allow for adequate stopping distance at highway speeds for oncoming vehicles. Peters and Cowan further contend that the EMS workers, in violation of the guidelines set forth in the operating guide, erroneously parked the ambulance in front of Peters' vehicle instead of behind it, blocking Church-Ford's view of the flashing lights on the ambulance, so that he did not notice the flashing lights in time to avoid the accident.

"It is well settled [,however,] that a municipality cannot be held liable for negligence in the performance of a governmental function unless a special relationship exists between the municipality and the injured party" (Eckert v State of New York, 3 AD3d 470, 470 [2004]; see also Balsam v Delma Eng'g. Corp., 90 NY2d 966, 967 [1997]; Cuffy v City of New York, 69 NY2d 255, 260 [1987]; Respass v City of New York, 288 AD2d 286, 287 [2001]; Haggerty v Diamond, 251 AD2d 455, 455 [1998]). "[T]raffic regulation, including the placement of road flares, [has been held to be] . . . 'a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police power'" (Eckert, 3 AD3d at 470, quoting Balsam, 90 NY2d at 968; see also DiFlorio v Worden, 303 AD2d 924, 924 [2003]; Respass, 288 AD2d at 287; Gonzalez v County of Suffolk, 228 AD2d 411, 412 [1996]).

Thus, since, here, the alleged negligence of the City and the NYCHHC charged by Peters and Cowan was in their performance of traffic regulation to secure the accident scene, including the EMS workers' placement of road flares, the City and the NYCHHC were engaged in a governmental function, requiring plaintiffs to establish the existence of a special relationship between them and the City or the NYCHHC (see Balsam, 90 NY2d at 968; Eckert, 3 AD3d at 471; DiFlorio, 303 AD2d at 924; Respass, 288 AD2d at 287; Gonzalez, 228 AD2d at 411-412). The elements of this special [*5]relationship which must be established are: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy, 69 NY2d at 260; see also Isaksson v Rulffes, 135 AD2d 611, 613 [1987]).

Peters argues that a special relationship between him and the City and the NYCHHC existed because the EMS workers had stopped and started to render aid to him. Such argument is without merit. Peters' claims do not arise out of the EMS workers' medical treatment of him (compare Fonville v New York City Health & Hosps. Corp., 300 AD2d 623, 624 [2002]), but in their control of traffic, which, as noted above, is a governmental function (see Balsam, 90 NY2d at 968; Eckert, 3 AD3d at 470; DiFlorio, 303 AD2d at 924; Respass, 288 AD2d at 412). Furthermore, Peters was not placed in a more dangerous position by the EMS workers' stopping at the scene and placing of flares than he would have been if the ambulance had failed to stop and place any flares at the scene. Moreover, Cowan, as a pedestrian, and Peters, who had no direct contact with the City or the NYCHHC prior to his accident, cannot show that they justifiably relied upon a promise by the City or the NYCHHC and that their reliance was causally connected to the harm they suffered, as is required in order to establish the existence of a special relationship between them and the City and the NYCHHC (see Respass, 288 AD2d at 287; Gonzalez, 228 AD2d at 412; Isaksson, 135 AD2d at 613).

Additionally, no special duty or special relationship can arise from any alleged violation by the EMS workers of the guidelines for the operation of EMS vehicles set forth by the operating guide. The operation guidelines were intended to benefit injured persons, but only "in the broad sense of protecting all members of the general public similarly situated"(Isaksson, 135 AD2d at 613). This is insufficient to form a basis for municipal liability (see O'Connor v City of New York, 58 NY2d 184, 189-190; Isaksson, 135 AD2d at 613).

Contrary to the contention by Peters and Cowan that the guidelines in the operating guide of the New York City EMS are mandatory requirements that must be strictly followed by the EMS workers, the operating guide only states that its purpose is "[t]o set forth policy and guidelines for the operation of EMS vehicles." Indeed, Scullion specifically testified at his deposition that the ambulance crew has discretion with regard to the placement of flares at accident scenes, and that the "practicality" of the situation determines the placement of the flares.

As pointed out by the City and the NYCHHC, EMS workers, in handling an emergency situation, are required to make quick decisions, similar to those made by police officers or firefighters when approaching an accident location, i.e., how to control traffic (pedestrian and/or motor vehicle) so as to limit further injury to the parties involved and to the public. The EMS workers herein, in making their on-scene decisions, had to exercise discretion in quickly assessing the situation and deciding on a course of action, particularly in light of the fact that they were charged with the responsibility both to secure the accident scene as well as to treat the previously injured patient. There is thus no showing that the actions of the EMS workers were other than a "matter[] of judgment within the ambit of ordinary negligence for which no cause of action against a municipality will lie" (DiFlorio, 303 AD2d at 925). [*6]

The City and the NYCHHC "are immune from liability for errors in judgment in responding to an unfolding emergency situation," such as in failing to prevent oncoming traffic from colliding with a disabled vehicle (id. at 924-925). "'Immunity reflects a value judgment that - - - despite injury to a member of the public - - - the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear and second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury'" (id. at 925, quoting Mon v City of New York, 78 NY2d 309, 313 [1991]). The actions taken by Buffa and Prescott were within the realm of discretionary governmental functions to which liability cannot attach.

In any event, the evidence submitted by the City and the NYCHHC demonstrated that any alleged negligence of the EMS workers in failing to properly secure the area of the first accident was not the proximate cause of the second accident, but merely set the scene for it (see Saviano v City of New York, 5 AD3d 581, 582 [2004]; Whitehead v Reitoffer Shows, 304 AD2d 754, 755 [2003]; Ely v Pierce, 302 AD2d 489, 489 [2003]; Connolli v 81 and 13 Cortland Assocs., 285 AD2d 863, 864-865 [2001]). Church-Ford testified at his deposition that he first observed the accident scene and saw either flares or cones in the roadway and a crowd in the area when he was "[a]bout a block away." He also testified that he noticed the ambulance prior to contacting Peters' vehicle. Church-Ford further stated that he attempted to change lanes and was cut off by another car and ended up swerving back into his lane and hitting the accident scene. He also admitted that he had been drinking prior to the accident and that he was arrested at the accident scene.

Thus, inasmuch as Church-Ford has testified that he saw the accident scene from a block away, it is apparent that any lack of the EMS workers' conformance to the flare pattern set forth in the operating guide was not the proximate cause of Church-Ford's driving through the accident scene and causing the second accident (see Ely, 302 AD2d at 489). Consequently, the cross motion by the City and the NYCHHC for summary judgment dismissing Peters' complaint as against them in action # 1 and Cowan's complaint as against them in action # 2 must be granted (see CPLR 3212 [b]).

In support of his motion for summary judgment dismissing Cowan's complaint as against him in action # 2, Peters argues that action # 2 involves a rear-end collision by Church-Ford with his stopped vehicle, establishing a prima facie case of negligence on the part of Church-Ford (see Schmidt v Edelman, 262 AD2d 502, 503 [1997]). He asserts that the cause of Cowan's accident was due entirely to Church-Ford's negligence, and that he cannot be held liable to Cowan in action # 2.

Cowan, in opposition, points out that Peters has no recollection of either accident and that he, consequently, has not established that the first accident did not occur as a result of Peters' negligence in the operation and control of his vehicle. Cowan contends that Peters' negligence in the first accident was a substantial contributing factor to the second accident, which occurred as a result of Peters' disabled vehicle's presence in the roadway. Cowan asserts that a natural and foreseeable consequence of a vehicle stopped in the middle of a roadway is that another vehicle would crash into it. She argues that the question of whether the intervening negligence of Church-Ford in striking Peters' disabled vehicle should relieve Peters, as the initial tortfeasor, of liability is, therefore, one of fact for a jury to decide.

Cowan's argument is rejected. Although, in general, the issue of proximate cause is for a jury to determine (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Sorrentino v Wild, 224 AD2d 607, 607 [1996]), "liability may not be imposed upon a party who merely furnishes the [*7]condition or occasion for the occurrence of the event but is not one of its causes" (Ely, 302 AD2d at 489; see also Whitehead, 304 AD2d at 755; Siegel v Boedigheimer, 294 AD2d 560, 562 [2002]; Connolli, 285 AD2d at 864-865).

Here, Cowan concedes that Peters' vehicle was disabled and Peters (who was in a stretcher) could not, at the time of Cowan's accident, move his vehicle off the highway (compare Ricchiazzi v Gray, 5 AD3d 1085, 1086 [2004]). As discussed above, Church-Ford testified at his deposition that he observed the accident scene from a block away. Thus, the independent act of Church-Ford, in striking Peters' vehicle, caused Peters' vehicle to propel into the ambulance, which then struck Cowan, and caused Cowan's accident (see Siegel, 294 AD2d at 562). The placement of Peters' vehicle in the roadway did not proximately cause Cowan's accident, but merely furnished the condition or occasion for it (see Whitehead, 304 AD2d at 754-755; Ely, 302 AD2d at 489; Siegel, 294 AD2d at 562). Therefore, Peters' motion for summary judgment dismissing Cowan's complaint as against him in action # 2 must be granted (see CPLR 3212 [b]).

Ahmed, in support of his cross motion for summary judgment insofar as it seeks dismissal of Peters' complaint as against him in action # 1, relies upon Peters' deposition testimony that due to his injuries, he has no recollection of the day of the accident. Ahmed contends that, therefore, there is no evidence of negligence against him, and that Peters' complaint as against him in action # 1 must be dismissed.

Ahmed's contention is devoid of merit. A defendant moving for summary judgment must make a "prima facie showing of his or her entitlement to judgment as a matter of law, tendering sufficient [non-hearsay] evidence to eliminate any material issues of fact" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Gaetano Marzotto & Figli S.P.A. v Filene's Basement, 213 AD2d 591, 591 [1995]; Greenberg v Green, 197 AD2d 502, 502 [1993]). A defendant ought not be considered to have established a prima facie right to judgment as a matter of law simply by criticizing the plaintiff's case, but must adduce affirmative evidence of his or her entitlement to such relief (Torres v Industrial Container, 305 AD2d 136, 136 [2003]; Peskin v New York City Tr. Auth., 304 AD2d 634, 634 [2003]). Regardless of the sufficiency of the opposing papers, the absence of sufficient admissible evidence to eliminate any material issues of fact precludes an award of summary judgment (Greenidge v HRH Constr. Corp., 279 AD2d 400, 402 [2001]).

In the case at bar, no affidavit has been submitted by Ahmed, and Ahmed has not appeared for deposition. Ahmed supports his cross motion for summary judgment only with his attorney's affirmation. The affirmation of Ahmed's attorney, who lacks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment dismissing Peters' complaint as against Ahmed (see Salas v Town of Lake Luzerne, 265 AD2d 770, 771 [1999]; Adam v Cutner & Rathkopf, 238 AD2d 234, 239 [1997]; Werdein v Johnson, 221 AD2d 899, 900 [1995]). Thus, Ahmed's cross motion, insofar as it seeks summary judgment dismissing Peters' complaint as against him in action # 1, must be denied.

Cowan opposes Ahmed's cross motion insofar as it seeks summary judgment dismissing her complaint as against him in action # 2. She points to the fact that Ahmed has never been deposed in this action and argues that Ahmed merely points to gaps in her proof, i.e., that she did not observe the accident between him and Peters and that Peters has no recollection of how the accident happened. Cowan argues that Ahmed, therefore, has not affirmatively established that he was free [*8]from negligence so as to entitle him to summary judgment dismissing her complaint as against him.

Cowan's argument is rejected. While it is true that Ahmed has not made a prima facie showing that he was free from negligence with respect to his motor vehicle accident with Peters, such alleged negligence was not the proximate cause of Cowan's injuries. As discussed above, Church-Ford testified at his deposition that he observed the accident scene from a block away, and it was his independent act of striking Peters' vehicle, propelling it into the ambulance, which then struck Cowan, that was the sole proximate cause of the second accident (see Whitehead, 304 AD2d at 755; Ely, 302 AD2d at 489; Siegel, 294 AD2d at 562). Indeed, Church-Ford did not hit Ahmed's vehicle and it was not involved in Cowan's accident. Thus, Ahmed's collision with Peters' vehicle merely furnished the condition or occasion for the occurrence of the accident and was not the proximate cause of Cowan's accident (see Whitehead, 304 AD2d at 755; Ely, 302 AD2d at 489; Siegel, 294 AD2d at 562). Summary judgment dismissing Cowan's complaint as against Ahmed in action # 2 must, therefore, be granted (see CPLR 3212 [b]).

Accordingly, Peters' motion in action # 1, Cowan's motion in action # 2, Peters' cross motion in action # 2, and Ahmed's cross motion in action # 2, for sanctions, pursuant to CPLR 3126, against the City and the NYCHHC for failure to comply with discovery, are denied. The cross motion by the City and the NYCHHC for summary judgment dismissing Peters' complaint as against them in action #1 and Cowan's complaint as against action # 2, is granted. Peters' motion for summary judgment dismissing Cowan's complaint as against him in action # 2 is granted. Ahmed's cross motion for summary judgment is denied insofar as it seeks summary judgment dismissing Peters' complaint as against him in action #1 and is granted insofar as it seeks summary judgment dismissing Cowan's complaint as against him in action # 2.

This case is hereby transferred to a non-city part as the city is no longer a party to this action.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.